STATE OF NEW JERSEY VS. JULIO RIVERO(10-10-1089, UNION COUNTY AND STATEWIDE)

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NOT FOR PUBLICATION WITHOUT THE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-5526-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD R. LEONCINI,
Defendant-Appellant.
_______________________________
Argued February 6, 2017 – Decided March 1, 2017
Before Judges Sabatino and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 14-07-0697.
Jaime B. Herrera, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. Herrera, of counsel and on the briefs).
Jennifer B. Paszkiewicz, Assistant
Prosecutor, argued the cause for respondent
(Robert D. Bernardi, Burlington County
Prosecutor, attorney; Ms. Paszkiewicz, of
counsel and on the briefs).
PER CURIAM
Tried by a jury, defendant Richard R. Leoncini was found
guilty of second-degree eluding, N.J.S.A. 2C:29-2(b). The trial
judge downgraded the conviction to a third-degree offense at
sentencing and imposed a three-year flat custodial sentence.
On appeal, defendant raises two arguments in his brief:
POINT I
DEFENDANT WAS DEPRIVED OF HIS DUE PROCESS
RIGHT TO A FAIR TRIAL BECAUSE DESPITE EVIDENCE
THAT HIS MENTAL STATE HAD DECLINED SINCE THE
OUTSET OF THE TRIAL, THE TRIAL COURT FAILED
TO REEVALUATE DEFENDANT'S COMPETENCE.
POINT II
THE TRIAL COURT ERRED IN IMPOSING A PRISON
SENTENCE WHERE DEFENDANT'S EXTENSIVE HISTORY
OF MENTAL ILLNESS, HIS SUICIDAL TENDENCIES,
AND HIS MEDICAL ISSUES OUTWEIGHED THE NEED FOR
GENERAL DETERRENCE.
Having considered these arguments in light of the record and the
applicable legal principles, we affirm.
I.
The factual scenario arises out of defendant's operation of
his vehicle on February 1, 2014, and his related conduct on that
day. The proofs at trial revealed the following sequence of
events.
The Driving Episode
On the day in question, Mansfield Township Police Detective
Daniel Ehnstrom was on duty around 6:30 p.m. when he witnessed a
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white Chevrolet HHR make an illegal U-turn on Route 206. The
detective, who was driving a marked patrol car in the opposite
direction, turned around to pursue the Chevrolet. He activated
the police car's emergency lights. Within "a few seconds," the
detective caught up to the Chevrolet, but it continued going at
the same speed.
The detective kept following the Chevrolet as it drove along
the state highway. Attempting to catch the pursued driver's
attention, Ehnstrom sounded his air horn and police siren, but the
driver did not stop. Throughout the encounter, the driver
essentially maintained the same speed.
As the detective's pursuit continued, the Chevrolet driver
turned onto Route 68, a four-lane highway. Once on that highway,
the driver began to swerve between lanes. He stuck his left hand
out the window to wave at the police car, which Ehnstrom perceived
as "an effort for me to pull up next to him." The driver approached
the intersection at Nade Drive, and then, according to Ehnstrom,
ran the red light without slowing down. At the next red light at
Mansfield Road East, Ehnstrom testified, the driver "slowed down
a little bit," but still ran the red light. Further along, at the
intersection with Route 537, the driver "appeared to hit the brakes
and slow up," but did not stop at the red light.
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Ehnstrom testified that the driver wore camouflaged clothing
and was heading in the direction of Fort Dix. Route 68 ultimately
dead-ends into the entrance of that military base. The detective
radioed dispatch "to notify the Department of Defense and the
military personnel that we were headed in their direction in case
there may be some sort of terrorist or some other concern."
Further down Route 68, the road narrowed into two lanes, one
in each direction. The Chevrolet and the police car then came
upon two other cars, which were stopped at a red light at the
Saylors Pond Road intersection. To get around those cars, the
Chevrolet driver veered into the lane of oncoming traffic, again
running a red light.
When the Chevrolet and the police car approached Fort Dix
security checkpoint, the Chevrolet driver stopped his car and got
out. Detective Ehnstrom observed that the driver was a "white
male, probably approximately in his 50s, wearing a camouflage
[basic military uniform], [and] kind of disheveled looking." The
detective later identified the driver as defendant.
Detective Ehnstrom got out of his police car and approached
defendant. He testified that defendant "complied and was
handcuffed and was taken into custody." Defendant gave the
detective his real name and did not try to mislead him.
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Fort Dix personnel apparently were in possession of
defendant's driver's license, based on a previous interaction with
him at the base earlier that day. According to Ehnstrom, "probably
ten or twelve" security officers were stationed at the gate,
instead of the usual two officers. The base employees had also
constructed a temporary barricade.
Defendant's Account
Defendant presented a somewhat different narrative during his
own trial testimony. According to his account, on February 1,
2014, after watching a television show about American soldiers
being wounded overseas, he "drove down to Fort Dix and . . .
started asking . . . questions." Defendant asserted that he was
concerned about how the military "reinforce[s] the Humvees or why
are all of our service personnel coming back with so many
injuries."
Defendant acknowledged that he drove to Fort Dix wearing
camouflage. Upon arrival, he asked an officer at the security
booth several questions relating to his concerns about wounded
service personnel. The security officer requested and obtained
defendant's identification, which the officer kept. The officer
told defendant he could not leave. According to defendant, this
interaction made him nervous, so he got into his Chevrolet and
left the base without his identification.
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Defendant drove away from Fort Dix onto Route 68 and turned
onto Route 206. At that point, he realized he should not be
driving without his license. According to defendant, he called
either 4-1-1 or 9-1-1, and asked for a State Police dispatcher.
He claimed that he asked for "backup" from the State Police to
accompany him, "because [he] didn't know if [he] went back [to
Fort Dix] what they were going to do."
While still on the phone, defendant turned his Chevrolet
around by making a U-turn on Route 206. He claimed that he did
not see a sign indicating such a U-turn was improper. At that
point, he dropped his cell phone onto the car floor. He leaned
over to try and pick it up. When he looked up again, defendant
noticed what he believed was the State Police "backup" that he had
requested, driving behind him. According to defendant, he did not
want to pull over because he did not possess his identification.
Defendant continued driving toward Fort Dix. He testified
that he waved at the police vehicle following him "two or three"
times. Although he acknowledged driving through several red
lights, defendant explained, "I was driving real slow. The officer
that was behind me kept his distance. He wasn't driving
aggressive. I wasn't driving aggressively." Defendant
acknowledged that once he arrived at Fort Dix, he was arrested.
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Defendant explained at trial why he thought the police had
followed him, and why he did not stop:
To stop me. I'm telling you he [the officer]
had his lights on. He wanted to stop me. I
wanted to get back to Fort Dix and make as big
of a scene as possible so Fort Dix knew and
the [S]tate [P]olice were there that they knew
they were protected and there were people
protecting them. I wasn't trying to harm
anybody. I wasn't driving erratically. I
slowed down and made sure all vehicles were
clear of my path. I knew with the police
officer's lights on behind me with his siren
going that any vehicles in any intersections
would slow down because there was an emergency
vehicle approaching.
[(Emphasis added).]
The Pretrial Proceedings
Following this incident, defendant was charged with second-
degree eluding. Defendant did not challenge through his counsel
the legality of the motor vehicle stop. Instead, the pretrial
proceedings focused on defendant's competency to stand trial.
At defendant's first court appearance on February 3, 2014,
the judge attempted to set bail, but defendant insisted on
discussing the merits of the case. The bail decision was
consequently delayed to the following day.
The next day, the judge again attempted to ask defendant if
he understood the charges. After hearing some ramblings by
defendant about inmates at Guantanamo Bay, the judge set bail.
7 A-5526-14T1
The judge also required defendant to be held, pending a court-
ordered psychiatric evaluation.
The record on appeal does not include a copy of the initial
psychiatric evaluation. However, later reports indicate that
defendant underwent that initial court-ordered screening on
February 14, 2014.
Based upon observations that he was "confused, agitated, and
disorganized," defendant was civilly committed temporarily to a
hospital for psychiatric treatment. During that brief commitment,
defendant was medicated with Depakote and Haldol, and his condition
improved. At some point not specified in the record, medical
personnel deemed defendant suitable for discharge, and he was
released from the hospital on February 24, 2014. Because his bail
had been posted, he was released into the community. He lived at
home until the time of trial.
In September 2014, the trial court conducted a status hearing
to address the State's plea offer and also to discuss defense
counsel's motion for a competency hearing. With respect to the
second-degree eluding offense, which exposed defendant to a five-
to-ten-year custodial sentence, the State offered him a
noncustodial sentence within the third-degree range, with a
mandatory six-month loss of driver's license. Defense counsel
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advised the court that he had discussed the State's offer with
defendant "many, many times," and that the client had rejected it.
Defense counsel requested the court to order a second
competency evaluation to supplement the results of the February
2014 evaluation. Counsel argued that the initial evaluation was
not a "full blown competency evaluation," since it did not
explicitly confirm that defendant understood the judge's role in
the trial and his own role as an attorney. Without objection from
the State, the court ordered the second evaluation.
Dr. Paul's Competency Evaluation
The second evaluation was performed by a licensed
psychologist, Dr. Peter D. Paul, who was with defendant for an
hour on October 7, 2014. Dr. Paul issued his written report of
that session on October 31, 2014. As part of the evaluation, Dr.
Paul reviewed defendant's medical and criminal records.
Defendant disclosed to Dr. Paul that he had a history of
mental illness. That history stemmed from a childhood accident
in which he was "hit by a bus while riding a motorcycle, causing
him to crash head first into a telephone pole."
Dr. Paul noted in his report that defendant showed he was
aware that the court had ordered him to be evaluated, and that he
understood that the evaluation could not be used as evidence
against him in the criminal case itself but only to determine his
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competency. The doctor stated that defendant was "extremely verbal
and tended to go off on tangents, but was generally cooperative
with being interviewed[.]" Defendant disclosed to Dr. Paul the
medication that he was taking. He denied experiencing any
hallucinations. Dr. Paul specifically noted in this regard that
defendant "did not display a disturbance in his thinking."
Dr. Paul found defendant "initially irritable," but noted
that as the interview progressed, he complied with questions. Dr.
Paul found that defendant's "mood appeared to be relatively
stable." With respect to defendant's cognitive skills, Dr. Paul
observed that his thinking was "logical and clear," and that he
could easily recall recent as well as more distant memories.
Although defendant was prone to go off on tangents, Dr. Paul
nonetheless found he was "fully alert."
On the subject of his pending criminal case, defendant told
Dr. Paul that he had not accepted the State's plea offer because
"he would be set up to fail [probation]" inasmuch as he would not
be able to get to the Probation Office in New Brunswick by mass
transit. Defendant did admit to Dr. Paul that he "got a little
upset in court" when his attorney had encouraged him to accept the
plea offer.
Additionally, Dr. Paul found that defendant recognized the
elements of the criminal justice system, and how those elements
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related to him and his case. The doctor noted that defendant knew
that he was charged with a crime arising from his failure "to
yield to a police vehicle." Defendant also displayed to Dr. Paul
an understanding of the respective roles of the prosecutor, the
judge, his attorney, and the jury. Defendant recognized that he
had the right to remain silent at trial or testify on his own
behalf.
In sum, Dr. Paul concluded that defendant was competent to
stand trial. The doctor recommended that defendant continue with
his medication to maintain that competency. Dr. Paul noted that
defendant was living independently in the community while on
medication, and opined that "it is likely that [defendant] will
remain competent while he takes his current medication."
As Dr. Paul concluded, "[a]lthough he can be irritable and
oppositional, this defendant is living in the community
independently at this time. His current mental condition is such
that he does not present a danger to himself, other persons, or
property."
The February 25, 2015 Competency Hearing
On the eve of trial, the trial court conducted a competency
hearing on February 25, 2015, nearly five months after the October
2014 competency evaluation performed by Dr. Paul. At the outset
of that hearing, the judge noted that he had reviewed Dr. Paul's
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report. The judge indicated that he also wanted to hear from
defense counsel and defendant himself, in order to "assure the
[c]ourt that [defendant] is still competent to stand trial."
Defendant's trial counsel addressed the court first. He
stated that he had numerous phone calls and in-person encounters
with defendant since September 2014. Counsel stated that his
"impression all along [is] that [defendant] has been competent to
deal with this matter in the sense that he's always been lucid."
The attorney confirmed that defendant understood the charges, as
well as the respective roles of the judge, the prosecutor, and the
defense attorney, and also his status in the case as the defendant.
Although counsel acknowledged that "because of [defendant's]
emotional issues that [he] often times gets off point," the
attorney advised the court that "I haven't had problems" bringing
his client's attention back to the trial. The attorney maintained
that he had been able to discuss the nuances of the case with
defendant, as well as the reasoning that had led to his rejection
of the plea offer.
The judge next conducted a colloquy on the record with
defendant. During this exchange, defendant frequently would veer
off-topic or discuss elements of this case, despite his attorney's
instructions to remain quiet. However, when he was focused back
on the pertinent topics by the judge, defendant generally provided
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coherent responses that reflected a cogent understanding of the
legal process.
Defendant confirmed to the judge his awareness of the roles
of the judge, the prosecutor, and his defense counsel. He
recognized that the prosecutor was "going to argue to the jury"
that he ran two red lights while a police officer was behind him.
Defendant also understood that his attorney was "going to be trying
to defend me," although he realistically appreciated that
counsel's task would be difficult because there was "videotape
showing me running two lights, although I was proceeding slowly."
Defendant further acknowledged to the judge that he knew he had a
right not to testify, although he would "rather explain to the
jury what I did [and] why I did it."
Based on these presentations, the judge ruled that defendant
remained competent to stand trial. The case then proceeded with
the State's evidence.
The Course of the Trial
At several points in the trial, the judge engaged in further
colloquy with defendant concerning his decision about testifying.
The judge advised defendant to listen to his attorney and evaluate
his decision on the subject carefully. The judge read defendant
the instruction that would be read to the jury if he opted to
testify. The judge further explained to defendant that his prior
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convictions could be considered by the jury if he chose to testify.
Defendant asked the judge if he could explain those prior
convictions if they were admitted. During the course of the
colloquy outside of the jury's presence, defendant made various
statements to the court that were self-inculpatory.
The judge considered the admissibility of defendant's prior
convictions under N.J.R.E. 609 and the Sands/Brunson test.1 Before
rendering his decision on admissibility, the court adjourned for
the weekend.
When the case resumed on March 3, 2015, the judge again
addressed defendant's intentions about testifying. Defense
counsel informed the court that he and defendant had met on the
preceding Friday and Saturday to discuss the decision.
THE COURT: [Defendant], have you made a
decision about whether you will testify at
trial?
DEFENDANT: I’ll let my attorney ask me the
questions and I will testify but the verdict
is going to be based on the evidence which is
not the accurate --
DEFENSE COUNSEL: [Defendant], just answer the
question.
1
The Sands/Brunson test evaluates the "remoteness" of a
defendant's prior convictions and determines their admissibility
at trial. See State v. Brunson, 132 N.J. 377 (1993); State v.
Sands, 76 N.J. 127 (1978). But see the revised version of N.J.R.E.
609. (effective July 1, 2014). The admissibility of defendant's
prior convictions to impeach his trial testimony is not an issue
in this appeal.
14 A-5526-14T1
DEFENDANT: Yes, Your Honor, I’ll testify.
THE COURT: All right. Did you make this
decision yourself?
DEFENDANT: Well, my attorney’s advising me to
make this decision, Your Honor.
THE COURT: Have you been put under any
pressure, made any promises or threatened into
testifying?
DEFENDANT: No. I was [not] threatened or I
haven’t threatened anybody else. I just see
the way the case has been.
THE COURT: Well, the case isn’t over yet. Has
your attorney answered all the questions you
may have had about this?
DEFENDANT: I suppose.
Defendant ultimately testified, providing his account of the
events as we have previously described. At no point during the
trial did defense counsel raise defendant's competency as an issue
to be considered again by the court.
The Verdict and Sentencing
Following deliberations, the jury found defendant guilty of
second-degree eluding, the sole count in the indictment. Defense
counsel moved for a new trial, arguing that the court had
improperly admitted evidence of defendant's prior convictions.
That post-trial motion made no mention of defendant's competency.
The court denied the motion, leaving the jury verdict intact.
15 A-5526-14T1
At sentencing, the judge reviewed a presentence report that
provided details of defendant's mental health history. In addition
to that past history, the report indicated that defendant had
recently experienced suicidal thoughts since the time of the jury's
guilty verdict.
The judge noted in his sentencing analysis that he had
considered defendant's childhood head injury. The judge also
considered defendant's later diagnoses of schizophrenia, bipolar
paranoia, and delusion.
The judge identified three applicable aggravating factors
that bore upon the sentence: (3) "the risk that defendant will
commit another offense," N.J.S.A. 2C:44-1(a)(3), (6) "the extent
of the defendant's prior criminal record and the seriousness of
the offenses of which he has been convicted," N.J.S.A. 2C:44-
1(a)(6), and (9) "the need for deterring the defendant and others
from violating the law," N.J.S.A. 2C:44-1(a)(9). Additionally,
the judge found three pertinent mitigating factors: (2) "the
defendant did not contemplate that his conduct would cause or
threaten serious harm," N.J.S.A. 2C:44-1(b)(2), (4) "there were
substantial grounds tending to excuse or justify the defendant's
conduct, though failing to establish a defense," 2C:44-1(b)(4),
and (7) "the defendant has no history of prior delinquency or
criminal activity or has led a law-abiding life for a substantial
16 A-5526-14T1
period of time before the commission of the present offense,"
N.J.S.A. 2C:44-1(b)(7).
On balance, the judge concluded that the "mitigating factors
substantially outweigh the aggravating factors and there are
compelling reasons to downgrade the defendant's sentence." In
this regard, the judge noted that "the punitive effect of
imprisonment for this particular defendant is disproportionate to
the offense committed because of [his] mental health[.]"
Accordingly, the judge downgraded the eluding conviction to a
third-degree offense. As we have already noted, the judge
sentenced defendant to a three-year flat prison term, with no
parole disqualifier. The judge also ordered that defendant receive
further mental health treatment.
This appeal ensued. We now discuss, in turn, defendant's
points regarding (1) competency and (2) the sentence.
II.
Defendant's primary point on appeal is that the trial court,
sua sponte, was obligated to order an updated competency evaluation
immediately before or during the trial because of his display of
aberrational behavior in the courtroom. He contends that the
assertions of his trial attorney at the pretrial competency hearing
about his capabilities should be afforded minimal weight because
an attorney generally lacks the diagnostic skill of a mental health
17 A-5526-14T1
professional. He further contends that Dr. Paul's report had
essentially become stale by the time of trial. He maintains that
the psychologist's expert opinion vouching for defendant's
competency was predicated on an unsupported assumption that
defendant would continue to take his medications. He contends
that the aberrational behavior he displayed in the courtroom should
have raised a serious concern that he was no longer on those
medications when the trial proceeded.
Several fundamental principles guide our analysis of this
issue. The Legislature has codified the common law standards for
mental competence in N.J.S.A. 2C:4-4. The statute prohibits a
person "who lacks capacity to understand the proceedings against
him or to assist in his own defense" from being "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 statute further
requires the defendant to be the "mentally competent to stand
trial on criminal charges." N.J.S.A. 2C:4-4(b)(1). To determine
whether a defendant has the requisite mental competency, it must
be shown that he comprehends:
(a) That he is in a court of justice charged
with a criminal offense;
(b) That there is a judge on the bench;
(c) That there is a prosecutor present who
will try to convict him of a criminal charge;
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(d) That he has a lawyer who will undertake
to defend him against that charge;
(e) That he will be expected to tell to the
best of his mental ability the facts
surrounding him at the time and place where
the alleged violation was committed if he
chooses to testify and understands the right
not to testify;
(f) That there is or may be a jury present
to pass upon evidence adduced as to guilt or
innocence of such charge or, that if he should
choose to enter into plea negotiations or to
plead guilty, that he comprehend the
consequences of a guilty plea and that he be
able to knowingly, intelligently, and
voluntarily waive those rights which are
waived upon such entry of a guilty plea; and
(g) That he has the ability to participate
in an adequate presentation of his defense.
[N.J.S.A. 2C:4-4(b)(2)(a)-(g)].
Last year, our Supreme Court canvassed the procedural aspects
that relate to such competency determinations in State v. Gorthy,
226 N.J. 516, 530 (2016). The Court noted in Gorthy that, when
deciding if a criminal defendant is competent, a trial judge
retains the authority to decide whether or not to hold a competency
hearing, as there are "no fixed or immutable signs which invariably
indicate the need for further inquiry to determine fitness to
proceed." Ibid. (quoting Drope v. Missouri, 420 U.S. 162, 180,
95 S. Ct. 896, 908, 43 L. Ed. 2d 103, 118 (1975)).
19 A-5526-14T1
When a competency hearing is conducted, the State has the
burden to prove by a preponderance of evidence that the defendant's
mental condition "does not render him or her incompetent to stand
trial." Ibid. The trial court generally should rely on
evaluations by one or more mental health professionals, who opine
on the defendant's condition and ability to "understand and
participate in the legal process." Id. at 530-31. The State does
not have to prove that the defendant "is capable of formulating a
legal strategy" or has the ability to "communicate with counsel
using complex language." Id. at 531. The focus instead turns on
the extent the defendant's mental condition "precludes meaningful
interaction with his or her attorney." Id. at 532.
A court must make a competency determination based upon
sufficient supporting evidence. Defendant's arguments
substantially rely in this regard upon our opinion in State v.
Purnell, 394 N.J. Super. 28, 50 (App. Div. 2007). In Purnell, a
defendant challenged his conviction based on incompetency,
asserting that the trial judge had improperly rejected his trial
counsel's repeated assertions throughout the proceedings that his
client was not competent to stand trial. Id. at 49. The defendant
noted on appeal that he had not understood the significant jail
time he faced, despite his family members strongly encouraging him
to accept a plea offer. Id. at 51. He also referred to various
20 A-5526-14T1
rambling incoherent responses he had provided to questions from
the trial court. Id. at 52.
One year before the trial in Purnell, the court had ordered
a competency evaluation of defendant by a clinical psychiatrist.
However, the defendant had refused to cooperate during that
evaluation. Id. at 38-39. Hence, the psychiatrist could only
offer an "educated guess" as to the defendant's competency, which
the court found was "inconsistent" about whether he could stand
trial. Id. at 49.
Based on the expert report, defense counsel's representations
to the court, and a brief voir dire of defendant conducted in
court, the trial judge concluded defendant was competent to
proceed. Ibid.
On appeal, we overturned Purnell's conviction, finding that
the State had failed to meet its evidential burden of competency.
Id. at 50. We acknowledged that the defendant's refusal to
cooperate hindered a meaningful review of his competence, but
without sufficient evidence the court could not find him competent.
Id. at 52. We indicated that, in the circumstances presented, the
trial court or prosecutor should have procured additional experts
to evaluate the defendant. Ibid. We further noted the trial
judge could have attempted on the record to question the
defendant's understanding of the factors in N.J.S.A. 2C:4-4, or
21 A-5526-14T1
ordered further review of his past medical and school records.
Id. at 52-53. Because the State in Purnell did not provide
evidence to rebut the bona fide question of the defendant's
competency that had been presented, we reversed his conviction.
Id. at 53.
Defendant also relies upon State v. Lambert, 275 N.J. Super.
125, 131 (App. Div. 1994). In Lambert, at the outset of trial of
the defendant's drug distribution charge, defense counsel
requested an adjournment to enable a psychiatric evaluation of his
client. Id. at 130. Months earlier, the defendant had told his
counsel that he had no history of mental illness. Ibid. However,
eight days before trial, defense counsel learned that the defendant
in fact took psychiatric medication, had been placed on a suicide
watch at prison, and had been diagnosed as a paranoid
schizophrenic. Id. at 131.
Despite the fact that the defendant's trial counsel in Lambert
informed the court of these developments, and expressed concern
about his client's competency to stand trial, the judge denied the
request to adjourn the case for a psychiatric evaluation. Ibid.
A later psychiatric evaluation at the defendant's pre-sentencing
hearing concluded that he was competent. Id. at 132.
On appeal in Lambert, we reversed, finding that because
defense counsel had raised a bona fide doubt as to the defendant's
22 A-5526-14T1
competency, the trial court was required to conduct further
inquiry. Id. at 131-32. We noted that the trial attorney was "in
a far better position than the trial judge to assay the salient
facts concerning the defendant's ability to stand trial." Id. at
131 (quoting State v. Lucas, 30 N.J. 37, 74 (1959)). We also
ruled that the later pre-sentencing psychiatric determination of
competency did not resolve the issue, because the trial court had
too readily dismissed the trial counsel's expressed bona fide
concerns about defendant's competency during the trial phase.
Lambert, supra, 275 N.J. Super. at 133.
The circumstances here are not comparable to those in Purnell
and Lambert. The trial judge responsibly ordered two successive
professional evaluations before the trial, the most recent one by
Dr. Paul. In addition, the judge engaged in a voir dire of
defendant right before the trial began and witnesses were sworn.
Moreover, defendant's trial counsel clearly attested to his own
positive impressions of his client's competency to stand trial and
his ability to assist counsel in the case. This is markedly
distinguishable from the situation in Purnell, in which defense
counsel repeatedly pressed the competency concerns with the court,
which the court ignored.
The present case is also markedly different from Lambert, in
that this defendant's mental health history was not hidden until
23 A-5526-14T1
the eve of trial but instead well known and the subject of two
pretrial competency evaluations. The judge acted with reasonable
diligence and vigilance by ordering two such evaluations,
considering their results, and questioning both defendant and his
counsel on the record to confirm defendant's ability to proceed.
The judge also made multiple inquiries into defendant's decision
to testify.
Defendant contends that his display of erratic behavior
during the trial phase should have signaled to the court that he
was no longer on medication, and therefore the court should have
ordered a third competency evaluation. He also points to certain
post-trial information to support this argument. In particular,
he points to a handwritten letter he wrote to the judge after his
conviction and before sentencing, which states that he had been
"off [his] medications for a year and a half and was in a very
confused, paranoid, and manic state." Defendant also highlights
psychiatric reports attached to his sentencing brief indicating
he has a "[l]ong history of medication noncompliance at times . . .
due to financial problems."
Although we appreciate that an individual's competency can
be a dynamic and complicated subject, we are unpersuaded that the
trial judge in this case – based on what had been presented to him
and what steps he had already taken to assure defendant's
24 A-5526-14T1
competency – had any mandatory obligation to take additional
measures. To be sure, the trial transcripts show that defendant
often rambled, and his explanation of why he did not stop his car
when the police officer signaled for him to do so is not
compelling. Even so, defendant ultimately was focused away from
tangents. His decision to testify, by all outward manifestations,
had been repeatedly discussed with his counsel and the court and
he nevertheless exercised his right to present his account to the
jury. In Gorthy, supra, 226 N.J. at 536, the Court recognized the
importance of providing a defendant with mental health issues with
the autonomy to make that choice.
Notably, defendant's trial counsel here endeavored during
summations to use defendant's seemingly implausible narrative to
his advantage, urging the jurors to take into account that his
client "does not have the precise thinking of an accountant, a
bookkeeper, [or] a traffic controller." "His mind works
differently," counsel argued, defendant "says contradictory
things." Counsel advocated that, under the law, a person is not
guilty of eluding unless the State proves that the defendant
"know[s] that the officer wants to pull over, and that was not the
case in this particular instance."
Having thus unsuccessfully attempted to gain an acquittal by
such arguments designed to garner the jurors' understanding of his
25 A-5526-14T1
idiosyncratic manner, defendant is not entitled to a second chance
to gain relief through a new argument on appeal about his
competency that was never presented to the trial judge by his
counsel. We ascribe no nefarious motives to counsel in this
regard, as the record, by all indications, reflects that his
attorney genuinely perceived defendant to be competent to proceed,
as did Dr. Paul and the other expert who had previously examined
him.
In a supplemental brief provided to us on our invitation
after the appellate oral argument, the assistant deputy public
defender has supplied us with citations to several cases in which
an appellate court has ordered a remand to the trial court for the
purposes of a retrospective competency evaluation. Such a
retrospective evaluation could attempt to reconstruct whether a
defendant had been competent at the earlier time when he was tried.
We discern no reason to compel such a retrospective assessment in
this case.
The only reported New Jersey decision cited by the assistant
deputy public defender in which such a retrospective evaluation
was ordered is State v. Latif, 134 N.J. Super. 441, 447 (App. Div.
1975). That case is not on point here. In Latif, the trial court
notably had already granted a new trial because the defendant had
been incompetent at the time of his initial conviction. Id. at
26 A-5526-14T1
444. Before the new trial began, the State's expert opined that
the defendant was likely not competent to stand trial whereas the
defense expert reached a contradictory finding and opined that he
lacked competency. Id. at 444-45. Although defense counsel and
the State both agreed to an updated competency hearing, the court
declined to conduct one because the defendant had expressed his
personal desire to proceed to trial. Id. at 445-46. He then was
found guilty by the second jury. Id. at 443.
Given those discrete circumstances, we reversed the
conviction in Latif, because the competing expert opinions
presented to the trial court required the trial court to conduct
further inquiry. Id. at 447. We consequently remanded the case
to the trial court to address whether the evidence was sufficient
to make a competency evaluation. Ibid.
The situation here is not akin to that in Latif. The only
expert evaluations of defendant's competency consistently
supported his ability to stand trial, as contrasted with the
opposing expert reports that were presented to the court in Latif.
Although defendant has been treated in the past for mental illness,
there is no indication in this record, unlike in Latif, that he
was previously declared incompetent to stand trial. Moreover,
defendant's trial counsel here vouched for his client's competency
27 A-5526-14T1
and did not request an updated hearing. Nor did the prosecutor,
as in Latif.
The assistant deputy public defender has intimated that her
office has come into possession of additional information that may
show that defendant was not, in fact, on his medication as of the
time of trial. There was no timely motion to supplement the
appellate record with such materials during the briefing of this
case. Moreover, even if such medical records do exist and document
that defendant was non-compliant with his medications as of the
time of trial, no such information was supplied to the court during
the trial. We can hardly fault the judge for not considering
information that was never provided to him. That said, we do not
foreclose defendant from seeking relief in the trial court with
alleged newly-discovered evidence in an appropriate motion under
Rule 3:20-1, or in a future petition for post-conviction relief
under Rule 3:22-1.
Lastly, we reject defendant's argument that his incompetence
was demonstrated by self-inculpatory statements he made to the
court during trial. He did not make these statements in the jury's
presence. We are unpersuaded that the statements required the
court to delve further into his competency without a specific
request from his counsel in these circumstances.
28 A-5526-14T1
In sum, we conclude that the trial court had no sua sponte
obligation to order an updated competency evaluation in the
circumstances presented. The judge acted reasonably and in
substantial reliance upon the unrefuted expert reports, the
observations and attestations of defendant's trial counsel, and
defendant's own insistence on proceeding, in a manner that his
attorney attempted to use to strategic advantage with the jurors
in summation. The conviction is accordingly affirmed.
III.
Defendant separately argues that his sentence was excessive.
This argument requires little comment. The trial judge reasonably
took into account defendant's mental health history in downgrading
his second-degree conviction to a third-degree offense for
sentencing purposes. We discern no basis to disturb the judge's
discretionary weighing of the aggravating and mitigating factors.
State v. Roth, 95 N.J. 334 (1984). As the Court instructed in
State v. Bieniek, 200 N.J. 601, 612 (2010), when the trial court
follows "the sentencing principles set forth in the Code and
defined in our case law, its discretion should be immune from
second-guessing."
Defendant relies on State v. Jarbath, 114 N.J. 394 (1989) to
argue that a sentencing judge should decline to impose a custodial
sentence when there is a "serious injustice of imprisonment" in
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circumstances that clearly outweigh the need for deterrence. Id.
at 409. There, the Supreme Court found a custodial sentence
improper where the trial court did not downgrade the second-degree
manslaughter sentence of a developmentally disabled defendant,
despite finding that the aggravating factors were only "marginally
applicable." Id. at 401-02. Additionally, the Court determined
that because the defendant's mental condition rendered her unable
to endure prison life and caused her to experience ongoing daily
abuse by other inmates prior to sentencing, the "serious injustice
of imprisonment" outweighed the importance of general deterrence
of the crime. Id. at 409.
The present circumstances are different. First, the trial
judge here did downgrade defendant's sentence, based on his
analysis of the aggravating and mitigating factors, unlike the
court in Jarbath, which declined to do so. Further, although
defendant has allegedly experienced sexual abuse while being
imprisoned in the past, the record does not contain any evidence
of recent ongoing abuse, as was the case in Jarbath. The judge
here reasonably analyzed the aggravating and mitigating factors
as applied to this defendant, and found no demonstrated "serious
injustice" was present.
In sum, the judge at sentencing fairly took into account
defendant's mitigating circumstances, particularly in downgrading
30 A-5526-14T1
the offense despite the State's arguments for a longer second-
degree term. We decline to "second-guess" the judge's sentencing
decision, and the custodial term he imposed. Bieniek, supra, 200
N.J. at 612.
Affirmed.
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