IN THE MATTER OF THE COMMITMENT OF J.B.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1786-07T41786-07T4

IN THE MATTER OF THE

COMMITMENT OF J.B.

____________________________

 

Submitted May 4, 2009 - Decided:

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 01-06-1754 and 01-06-0156.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

J.B. appeals from the October 12, 2007 order continuing his involuntary civil commitment to a psychiatric hospital pending periodic review, and the January 3, 2008 order setting eleven-and-one-half-years (February 4, 2014) as the maximum period he shall remain on Krol status (the max-out date). We affirm J.B.'s continued involuntary commitment, and remand for a statement of reasons for imposition of the February 4, 2014 max-out date.

The following facts are pertinent to our review. In 2001, two Bergen County indictments were returned against J.B. charging him in Indictment 01-06-1754 for third-degree burglary, N.J.S.A. 2C:18-2a, and third-degree criminal mischief, N.J.S.A. 2C:17-3a(1), and in Indictment 01-06-0156 for fourth-degree criminal trespass, N.J.S.A. 2C:18-3a. The charges arose out of J.B.'s entry into the college dormitory room of his girlfriend and her roommate without their permission. In their presence, he knocked over a bed and threw a television and stereo out of the window. Police officers who later apprehended J.B. saw that he had cut his wrists in an apparent suicide attempt.

J.B. was subsequently diagnosed with bipolar disorder, manic type with psychotic features, and with an antisocial personality disorder. On June 24, 2003, the trial judge found him competent to stand trial on both indictments and not guilty by reason of insanity. The following colloquy occurred about the maximum period of J.B.'s Krol status (the max-out date):

[THE COURT]: Now, here's what the Court is determining, as far as when it expires. It will be five years on the one indictment and one and a half years on the other or eighteen months. So he'll be in for six and a half years because even if he went to trial and was found guilty the one would merge into the other. He would never be sentenced to ten years. In fact that case would be reversed very quickly.

So he will be placed on Krol status for -- you can't say six years. One and -- there's no one and a half years for a fourth degree crime. It's eighteen months. Maybe we'll convert everything into months.

[DEFENSE COUNSEL]: Seventy-eight months.

[THE COURT]: Seventy-eight months.

[DEFENSE COUNSEL]: Judge, as I said he has custody credits right here in Bergen County Jail of three hundred thirty-six days. I figured it out. I gave the date to [the assistant prosecutor].

[THE COURT]: Is [the assistant prosecutor] going to prepare the order, the judgment?

[ASSISTANT PROSECUTOR]: Yes.

[DEFENSE COUNSEL]: The expiration date would be January 22, 2009.

[THE COURT]: Right. All these dates, even the credits, put it right in the order.

[(Emphasis added).]

The prosecutor submitted a proposed order, which omitted a max-out date. Defense counsel lodged no objection to the order. The judge entered it on June 30, 2003, involuntarily committing J.B. to a psychiatric hospital and placing him on Krol status. Thereafter, the max-out date remained unresolved, as indicated in subsequent Krol hearings. The parties had also filed briefs on the issue. The judge made no ruling and entered no order reflecting a max-out date.

J.B.'s commitment was continued through periodic review orders issued by the judge on March 19 and June 23, 2004, which we affirmed. I/M/O The Commitment of J.B., No. A-4456-03 (App. Div. February 24, 2005). Thereafter, another judge held periodic Krol hearings and continued J.B.'s commitment. At the conclusion of a Krol hearing on September 18, 2006, the judge inquired about the max-out date. J.B. insisted that the prior judge set January 22, 2009 as the max-out date. The prosecutor disagreed and insisted on an eleven-and-one-half-year max-out date. The judge responded, "I will review the file. I will have you come in for oral argument and we'll argue a max out date." Defense counsel agreed.

A Krol hearing occurred on April 30 and September 28, 2007. The State's expert and J.B.'s treating psychiatrist, Mahmood Ghahramani, M.D., testified that J.B. has a long history of violent and assaultive behavior and non-compliance with medication. He is also an escape risk. The doctor noted that J.B. had been admitted to Ancora Psychiatric Hospital, but was transferred to the Ann Klein Forensic Center (Ann Klein) after assaulting his then treating psychiatrist. J.B. did not assume responsibility for the assault and blamed the doctor.

Dr. Ghahramani opined that J.B. has bipolar disorder, which is a lifelong problem that can go under remission with antipsychotic medication. J.B. also has an antisocial personality disorder with antisocial features and borderline qualities. Because J.B. was then on medication, the doctor opined that he was currently "under fair remission other than some mild symptoms of bipolar disorder[,] which is . . . pressured speech, and grandiosity still is there but his overall behavior is not overtly psychotic or manic." However, the doctor emphasized that if J.B. is under stress or stops taking his medication, he is "a very high risk for decompensation and acting out behavior, violent . . . [and] more impulsive." The doctor also testified that:

I agree that Axis II [anti-social personality disorder] is the more serious problem. If [J.B.] actually was just, had the bipolar disorder, and had a good insight into his problem, would take his medication . . . and [J.B.] has been quite resistant in the past to continue taking his medication and he has a pile of lawsuits against the doctors that they gave him medication, and so that also makes kind of high risk of his compliance with the treatment.

. . . .

That Axis II treatment is very difficult, very difficult, would be very long term. I don't know if just the problem of Axis II he had to remain in [a] psychiatric hospital for treatment of his Axis II problem but in general, at the present time [J.B.] needs the structure of the hospital besides the treatment and to safeguard the risk of violent behavior.

Dr. Ghahramani concluded that J.B.'s diagnosis, along with his psychiatric history, risk of violent behavior, dangerous acting out, and non-compliance with medication, make him a potential danger to himself and others. The doctor also concluded that J.B. should be continued at Ann Klein, not a less restrictive setting, because he could not maintain himself in a less restrictive setting.

J.B.'s expert, Daniel P. Greenfield, M.D., evaluated J.B. once prior to the hearing for approximately five hours. He also reviewed J.B.'s medical records and other documents. He acknowledged that the documents reveal that J.B. had been institutionalized and had received psychiatric treatment at various times since the age of twelve for acting out behaviors. J.B. also may have had attention deficit hyperactivity disorder, childhood bipolar disorder, and anti-social personality disorder. Nonetheless, the doctor opined that J.B. only has an Axis I diagnosis of polysubstance abuse in institutional remission, and an Axis II diagnosis of antisocial personality disorder. He concluded that J.B. does not have an Axis I diagnosis of bipolar disorder and that without an Axis I diagnosis, there was no clinical reason for J.B.'s commitment to a psychiatric institution.

On cross-examination, Dr. Greenfield conceded that J.B. has been manipulative and that because of his behaviors there was no reasonable likelihood that he would change; that J.B. does not want to take medication; that J.B. is always going to have the "propensity to act out and to try to act out in a potentially dangerous way against society and needs to be contained for that reason[;]" and that J.B. poses a danger to himself and others by virtue of his behaviors.

At the conclusion of the hearing, the judge found as follows:

First and foremost I place greater weight on Dr. Ghahramani's testimony and analysis than that of Dr. Greenfield. I find that it was Dr. Ghahramani's professional opinion, a summary of his findings and recommendations based on a reasonable medical certainty that [J.B.] has been suffering and continues to suffer from an emotional condition known as a bipolar disorder. He continues to say at some point in his recommendation, findings and recommendations, that [J.B.] is both manipulative and continues to be manipulative, has not benefited from treatment.

The treatment team feels that he continues to be a high risk if he is to be transferred to a less restrictive setting.

The recommendation of Dr. Ghahramani is that [J.B.'s] commitment be continued and case reviewed at a later time.

Now, although I place greater weight on Dr. Ghahramani's testimony than that of Dr. Greenfield, Dr. Greenfield today says that [J.B.] is in need of psychotherapy and containment. He does say [J.B.] will always have the propensity to act out against society according to my notes, that he's been in treatment sometime since his teenage years, just after the age of twelve, and I starred my notes when he said it.

Dr. Greenfield says [J.B's] acting out is a danger to himself and others.

[Dr. Greenfield] further testifies that bipolar diagnosis never goes away. It [] occasionally may be in remission. And although Dr. Greenfield does not feel [J.B.] is presently exhibiting any bipolar symptoms, he doesn't feel he is bipolar, Dr. Ghahramani does and I place greater weight in Dr. Ghahramani's testimony.

I do find there is an Axis I diagnosis and I find from what Dr. Greenfield says that bipolar diagnosis never goes away. Although it may be in remission.

I find that [J.B.] is a danger to himself and others and I will continue the commitment as it is presently constituted and I'm going to ask for a review six months from today which will be March 28, 2008 at 1:45 in this courtroom.

The judge entered the October 12, 2007 order continuing J.B.'s commitment. J.B. appealed this order.

On December 12, 2007, the judge heard oral argument on the max-out date. The State requested eleven-and-one half-years, arguing that there were two indictments and that J.B. should receive consecutive five-year terms for the two third-degree crimes and additional one-half years for the fourth-degree crime. J.B. requested six-and-one-half-years, arguing that the first judge had already set the max-out date at January 22, 2009, and that his crimes required concurrent sentences. The judge found as follows:

I find that we don't know what the criminal mischief connection was to the burglary.

We don't know why one was performed by, subsequent to the other.

The fact that we have the criminal trespass, that's the fourth degree crime. That's a year and a half.

But I don't feel comfortable setting a max out date of February 4th 2014, and finding that there is likely that they would have had, there would be a likely consecutive sentence to the third degree charges.

Accordingly, I'm going to ask the Prosecutor to submit a five day Order.

Of course [defense counsel] has the right within 45 days to take an appeal of this decision.

[(Emphasis added).]

The prosecutor then submitted an order setting an eleven-and-one-half-year max-out date continuing J.B.'s Krol status until February 4, 2014. Without making further findings, the judge then entered the January 3, 2008 order with the February 4, 2014 date. J.B. amended his appeal to include this order.

I.

J.B. first contends that the court should have terminated his Krol status because the State failed to prove that he currently suffers from any active mental illness. He points to Dr. Ghahramani's testimony that he does not currently display overtly psychotic or manic behavior, that his symptoms are mild, and that his condition is now in remission and does not currently fit the criteria of an individual who could be civilly committed under state law. He also points to Dr. Greenfield's testimony that he does not have bipolar disorder and does not require commitment. Alternatively, he seeks placement in a less restrictive environment.

"Our scope of review of a civil commitment judgment is exceedingly narrow." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007), aff'd, 197 N.J. 563 (2009) (citing In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003)). We should modify a commitment determination "only if the record reveals a clear mistake." In re D.C., 146 N.J. 31, 58 (1996) (citing State v. Fields, 77 N.J. 282, 311 (1978)). "Accordingly, it is our responsibility to canvass the record inclusive of the expert testimony to determine whether the findings made by the trial judge were clearly erroneous." J.M.B., supra, 395 N.J. Super. at 90. In so doing, "[w]e must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty." Id. at 89-90. See also In re Commitment of J.L.J., 196 N.J. Super. 34, 49 (App. Div. 1984), certif. denied, 101 N.J. 210 (1985). With these standards in mind, we continue our analysis.

"'When a person accused of a crime is acquitted by reason of insanity, the accused may be held in continued confinement if the person is a danger to self or others and is in need of medical treatment.'" In re Commitment of M.M., 377 N.J. Super. 71, 76 (App. Div. 2005) (quoting In re Commitment of W.K., 159 N.J. 1, 2 (1999)), aff'd, 186 N.J. 430 (2006). The State must show by a preponderance of the evidence that the defendant is mentally ill and poses a danger to himself or society. Krol, supra, 68 N.J. at 257. "Krol established the procedures for determining the length of commitment for a person who has been acquitted by reason of insanity." M.M., supra, 377 N.J. Super. at 76 (citing Krol, supra, 68 N.J. at 256-5). "'Commitment requires that there be a substantial risk of dangerous conduct within the reasonably foreseeable future. Evaluation of the magnitude of the risk involves consideration both of the likelihood of dangerous conduct and the seriousness of the harm which may ensue if such conduct takes place.'" Ibid. (quoting Krol, supra, 68 N.J. at 260). The focus is on whether the defendant "presently poses a significant threat of harm either to himself or others." Krol, supra, 68 N.J. at 247.

"'After the defendant is committed, periodic review hearings (Krol hearings) are held in a criminal proceeding on notice to the prosecutor to determine if continued involuntary commitment is warranted.'" M.M, supra, 377 N.J. Super. at 76 (quoting W.K., supra, 159 N.J. at 4). During the Krol hearings, the State must establish the need for continued commitment by the preponderance of the evidence. Ibid. (citing W.K., supra, 159 N.J. at 4). These hearings will continue "'during the maximum period for which imprisonment could have been imposed as an ordinary term of imprisonment for the charges on which the defendant has been acquitted by reason of insanity, after giving credit for all time spent in confinement for the charges.'" Ibid. (quoting W.K., supra, 159 N.J. at 4).

"The continued involuntary commitment of an NGI defendant is based upon the court's determination of whether the State has demonstrated that the defendant continues to be a danger to [him]self or others." Id. at 77 (citing Krol, supra, 68 N.J. at 263). "[A] Krol status defendant may remain committed for longer than the ordinary maximum term if the court finds that [he] remains a danger to [him]self or others." Ibid. (citing Jones v. United States, 463 U.S. 354, 368-70, 103 S. Ct. 3043, 3052-53, 77 L. Ed. 2d 694, 708-09 (1983)).

The determination of "dangerousness" is "'a legal one, not a medical one.'" Ibid. (quoting Krol, supra, 68 N.J. 261).

The standard is "dangerous to self or society." Dangerous conduct is not identical with criminal conduct. Dangerous conduct involves not merely violation of social norms enforced by criminal sanctions, but significant physical or psychological injury to persons or substantial destruction of property. Persons are not to be indefinitely incarcerated because they present a risk of future conduct which is merely socially undesirable. Personal liberty and autonomy are of too great value to be sacrificed to protect society against the possibility of future behavior which some may find odd, disagreeable, or offensive, or even against the possibility of future non-dangerous acts which would be ground for criminal prosecution if actually committed. Unlike inanimate objects, people cannot be suppressed simply because they may become public nuisances.

[Krol, supra, 68 N.J. at 259-60.]

There must be a "substantial risk of dangerous conduct within the reasonably foreseeable future." Id. at 260. Ultimately, the "[d]etermination of dangerousness involves prediction of defendant's future conduct rather than mere characterization of his past conduct. Nonetheless, defendant's past conduct is important evidence as to his probable future conduct." Id. at 260-61. The final determination of dangerousness requires a "delicate balancing of society's interest in protection from harmful conduct against the individual's interest in personal liberty and autonomy." Id. at 261.

Based upon our careful review, we are satisfied that the record amply supports the judge's factual and credibility findings, and his conclusion that J.B. continues to be a danger to himself and others and should remain involuntarily committed. We are also satisfied that the record amply supports J.B.'s continued confinement in a more restrictive placement.

II.

J.B. next contends that the max-out date should be set aside because (1) the January 3, 2008 order does not accurately reflect the judge's ruling as to the February 4, 2014 max-out date; (2) the February 4, 2104 max-out date is based on the erroneous assumption that a conviction on all charges would have resulted in the imposition of consecutive sentences; (3) the judge failed to set forth reasons for the February 4, 2014 max-out date; and (4) the first judge set January 22, 2009 as the max-out date.

We reject J.B.'s last contention. It is clear from the record that the max-out date remained unresolved and continued in doubt throughout these proceedings. More importantly, no order was ever entered setting a date. "[A]ppeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). See also Gazzillo v. Grieb, 398 N.J. Super. 259, 265 (App. Div.), certif. denied, 195 N.J. 524 (2008); JS Properties, L.L.C. v. Brown and Filson, Inc., 389 N.J. Super. 542, 552 n.4 (App. Div 2006). That said, we continue our analysis.

After a defendant is acquitted by reason of insanity, the court may dispose of him or her in three ways:

(1) If the court finds that the defendant may be released without danger to the community or himself without supervision, the court shall so release the defendant; or

(2) If the court finds that the defendant may be released without danger to the community or to himself under supervision or under conditions, the court shall so order; or

(3) If the court finds that the defendant cannot be released with or without supervision or conditions without posing a danger to the community or to himself, it shall commit the defendant to a mental health facility approved for this purpose by the Commissioner of Human Services to be treated as a person civilly committed. In all proceedings conducted pursuant to this section and pursuant to section [N.J.S.A.] 2C:4-6 concerning a defendant who lacks the fitness to proceed, including any periodic review proceeding, the prosecuting attorney shall have the right to appear and be heard. The defendant's continued commitment, under the law governing civil commitment, shall be established by a preponderance of the evidence, during the maximum period of imprisonment that could have been imposed, as an ordinary term of imprisonment, for any charge on which the defendant has been acquitted by reason of insanity. Expiration of that maximum period of imprisonment shall be calculated by crediting the defendant with any time spent in confinement for the charge or charges on which the defendant has been acquitted by reason of insanity.

[N.J.S.A. 2C:4-8(b) (emphasis added).]

In the typical criminal sentencing setting, "when reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court." State v. Natale, 184 N.J. 458, 489 (2005) (internal quotations and citations omitted). In such instances, we are "'expected to exercise a vigorous and close review for abuses of discretion by the trial courts.'" Ibid. (quoting State v. Jarbath, 114 N.J. 394 (1989)). We are also "'bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)).

However, in sentencing a Krol defendant, "a trial court should determine the probable maximum ordinary aggregate terms that defendant would have received if convicted of the offenses charged, taking into account usual principles of sentencing." W.K., supra, 159 N.J. at 6. "The 'usual principles of sentencing' do not include consideration of the aggravating and mitigating factors in establishing the term of commitment because N.J.S.A. 2C:4-8(b)(3) establishes the maximum term, subject to periodic review." M.M., supra, 377 N.J. Super. at 78. Accordingly, while the trial court has discretion to decide a defendant's max-out date, its decision must be based on usual principles of sentencing, limited to a consideration of concurrent and consecutive sentencing criteria. Ibid.

"When multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." N.J.S.A. 2C:44-5. In determining whether sentences for multiple offenses should run concurrently or consecutively, the trial court applies these criteria:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[State v. Yarbough, 100 N.J. 627, 643-44 (1985) cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).]

"[W]hen trial courts impose 'either a concurrent or consecutive sentence, '[t]he focus should be on the fairness of the overall sentence, ' and [the trial courts] should articulate their reasons for their decisions with specific reference to the Yarbough factors.'" State v. Soto, 385 N.J. Super. 247, 256 (App. Div. 2006) (quoting State v. Abdullah, 184 N.J. 497, 515 (2005)). "'[A] statement of reasons is a necessary prerequisite for adequate appellate review of sentencing decisions . . . [in order to] determine whether the trial court's imposition of consecutive sentences was a valid exercise of discretion.'" Ibid. (quoting State v. Miller, 108 N.J. 112, 122 (1987)). "Failure to provide reasons for the imposition of a consecutive sentence may compel a remand for resentencing." Ibid. (citing Miller, supra, 108 N.J. at 122). However, we have "the discretion to affirm a consecutive sentence without the reasons having been expressly stated where 'the facts and circumstances leave little doubt as to the propriety of the sentences,' and the sentences are not shown to be 'clearly mistaken.'" Ibid. (quoting State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.), certif. denied, 177 N.J. 492 (2003)).

In this case, the judge did not explain why he imposed the February 4, 2014 max-out date, and we cannot determine the propriety of that date from the facts and circumstances of this case. The judge also did not comment on why the earlier max-out date the first judge suggested was incorrect. Accordingly, we remand for a statement of reasons for the imposition of the February 4, 2014 max-out date.

Affirmed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

State v. Krol, 68 N.J. 236 (1975).

J.B. was once placed at the less restrictive Greystone Park and attempted to escape.

The doctor stated that such confinement should be prison rather that a psychiatric institution.

J.B. was on level one supervision at the time of the hearing, which is the most restrictive level of supervision.

N.J.S.A. 2C:44-5(a) overturned guideline (6). The statute states that '[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses.'" See also State v. Carey, 168 N.J. 413, 423 n.1 (2001).

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A-1786-07T4

RECORD IMPOUNDED

June 16, 2009