IN THE MATTER OF THE COMMITMENT OF D.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3581-10T2

IN THE MATTER OF THE

COMMITMENT OF D.T.

________________________

December 10, 2012

Submitted October 17, 2012 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Sussex County, Indictment No.

07-10-0458.

Joseph E. Krakora, Public Defender,

attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

David J. Weaver, Sussex County Prosecutor,

attorney for respondent (Francis A. Koch,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

D.T. appeals from an undated order of the Law Division filed on January 26, 2011, confining him civilly to an institution for mental health treatment pursuant to N.J.S.A. 2C:4-8 and State v. Krol, 68 N.J. 236 (1975). We affirm.

On November 21, 2006, D.T. shot and killed his brother, believing him to be one of many persons involved in a wide-ranging conspiracy to poison him with organophosphate pesticides. On the consistent testimony of two defense experts and a prosecution expert at a bench trial, the trial judge found D.T. not guilty by reason of insanity. The State chose one of the defense experts, psychiatrist Azariah Eshkenazi, to testify at the subsequent Krol hearing. Dr. Eshkenazi, the prosecutor, defense counsel, and the trial judge all agreed that D.T.'s commitment to an in-patient facility for mental health treatment was the proper course. D.T. now appeals the trial judge's order, arguing that he should have been released with conditions. We affirm the order of commitment.

In October 2007, a Sussex County grand jury indicted D.T. for murder, possession of a weapon with the intent to use it unlawfully, and possession of a prohibited weapon (a sawed-off rifle). The bench trial was held in December 2010 after defendant waived his right to trial by jury. In a written decision dated December 22, 2010, the trial judge found D.T. not guilty by reason of insanity.

The relevant facts are essentially undisputed. The testimony at trial covered D.T.'s mental health history in great detail, including his delusions, his short period of involuntary commitment, and his multiple examinations by psychiatrists and psychologists. The following summary suffices for purposes of the appeal.

D.T., now 49 years old, was once a successful student and businessman. He graduated from college with a degree in economics, along with credits in a number of other disciplines. Following college, he owned a landscaping business, in which he gained a reputation for good work.

Over time, D.T.'s physical and mental health deteriorated drastically. As early as 2001, D.T.'s girlfriend began to notice that he was becoming more and more paranoid. Among other unfounded accusations against her, D.T. came to believe that she was putting poison in cookies.

By 2004, his delusions and paranoia had increased significantly, and he became convinced that a vast conspiracy existed to poison him with organophosphates. Those involved in the conspiracy included his friends, his family, and even a prospective buyer of his home, who D.T. thought had tried to poison him by placing a white powder on his shoulder. D.T. believed that organized crime (in the form of a fictional "Sparta Mafia") was involved behind the scenes in trying to kill him. He obtained a rifle for protection, the barrel of which he sawed off to fit into his backpack and his motorcycle saddlebag.

In the early morning of November 21, 2006, D.T. argued with his brother at the brother's home. Believing that his brother was withholding from him the details of the plot, D.T. shot and killed his brother.

Following his incarceration, D.T.'s delusions expanded to include virtually anyone with whom he had prolonged contact. He was convinced that jail staff were trying to poison him, and that the conspiracy included even the trial judge and one of the doctors who examined him and testified as a defense expert at his trial. At one point, D.T. refused to have his prison jumpsuit washed because he feared it was being contaminated by chemicals. He began to think that either corrections officers or inmates were trying to poison his food.

Dr. Eshkenazi examined D.T. on behalf of the defense. D.T. reported to Dr. Eshkenazi that the gun "went off" after a "struggle," but the prosecution's evidence showed that the brother was shot five times, and the autopsy report indicated that none of the shots were fired from close range. Dr. Eshkanzi and the other doctors who examined him diagnosed D.T. as suffering from delusional disorder, paranoid type, and psychosis NOS (not otherwise specified).

After the criminal court's verdict of not guilty by reason of insanity, the court scheduled a hearing in accordance with N.J.S.A. 2C:4-8 to determine D.T.'s placement. The State chose Dr. Eshkenazi to perform the psychiatric examination for the placement hearing. On January 26, 2011, the court held the hearing, at which Dr. Eshkenazi was the only witness.

Dr. Eshkenazi testified that D.T.'s psychiatric condition had "changed little" and that, because of his delusions, he "could again become potentially dangerous to himself or others." Dr. Eshkenazi stated that D.T. suffered from delusions of persecution and that, without in-patient treatment, he might try to "protect himself" against those who he perceived were trying to harm him.

The judge found that the State had met its burden of showing D.T. could not be released without posing a danger to the community or to himself and ordered D.T. "to be confined in an appropriate institution and treated as a person civilly committed." D.T. filed a timely notice of appeal from the order of confinement.1

Whenever a defendant is acquitted by reason of insanity, the court is required to order a psychiatric examination, conducted by a doctor of the prosecutor's choice. N.J.S.A. 2C:4-8a. The defendant may also select a psychiatrist to conduct an examination. Ibid.

The court must make a finding of whether the defendant would be a "danger to the community or himself," with or without supervision or conditions. N.J.S.A. 2C:4-8b; see also Krol, supra, 68 N.J. at 249 (due process requires that "the standard for commitment be cast in terms of continuing mental illness and dangerousness to self or others"). If the defendant poses no danger to the community or himself, the court must release him unconditionally. N.J.S.A. 2C:4-8b(1). If he does pose a danger, but conditional or supervised release would abate the danger, the defendant may be so released. N.J.S.A. 2C:4-8b(2). If the court finds that the defendant cannot be released without posing a danger to self or society, even under conditions or supervision, then the court must order the defendant civilly committed to a mental health facility for in-patient treatment. N.J.S.A. 2C:4-8b(3). The State bears the burden of proving, by a preponderance of the evidence, that the defendant meets the standard for the restraint imposed. State v. Fields, 77 N.J. 282, 299-300 (1978).

D.T. argues that he should have been released on conditions, which would include taking appropriate medication. Dr. Eshkenazi, however, concluded that D.T.'s release would pose a danger to himself or others, and that hospitalization for treatment was necessary.

Appellate review of a trial judge's determination of the proper placement for defendant is "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." Id. at 311. Reversal is appropriate only where the "record reveals a clear mistake in the exercise of the reviewing judge's broad discretion." Ibid.

Here, the judge's decision was fully supported by the evidence. D.T. shot and killed his brother as a result of his paranoid delusions. At the placement hearing, Dr. Eshkenazi reported that D.T.'s "psychiatric condition ha[d] changed little," except that he believed he was not exposed to as many organophosphates while confined. It was clear from the testimony that D.T.'s delusional belief about a conspiracy to kill him did not end when his brother died. Rather, the delusion spread to anyone with whom D.T. had contact, including jail staff, the trial judge, and even the doctors assigned to evaluate him. Dr. Eshkenazi testified that, if released, D.T. would potentially act in the same way he had against his brother toward others he believed were out to harm him.

D.T. argues that his mental illness was the result of poisoning, which has now been alleviated. He relies on the report admitted in evidence of a neuropsychologist who did not testify at trial. The report opined that D.T. had actually suffered physical harm from organophosphates and that the poisoning may be a cause of his mental illness. The trial judge stated that the origin of D.T.'s mental illness is "open to question," but what matters for purposes of civil commitment is not how the mental illness came about but whether the individual poses a "substantial risk of dangerous conduct within the reasonably foreseeable future." Krol, supra, 68 N.J. at 260. The uncontradicted testimony of Dr. Eshkenazi, along with the underlying facts of the homicide, was more than sufficient to meet this standard.

The judge's determination "involves a delicate balancing of society's interest in protection from harmful conduct against the individual's interest in personal liberty and autonomy." State v. Ortiz, 193 N.J. 278, 292-93 (2008) (quoting Krol, supra, 68 N.J. at 261) (internal quotation marks omitted). That judgment, entitled to the "utmost deference," should not be disturbed in the circumstances of this appeal. D.T. shall remain committed for in-patient care, subject to continuing review at subsequent Krol hearings.

1 D.T. had at least two subsequent Krol hearings at which his confinement was continued. Neither those subsequent orders nor the records of the subsequent hearings are before us on this appeal.