STATE OF NEW JERSEY v. CARLOS CAMPOS

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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3717-16T1

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

CARLOS CAMPOS,

        Defendant-Respondent.


              Submitted December 12, 2017 – Decided December 29, 2017

              Before Judges Carroll and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              12-01-0156.

              Esther Suarez, Hudson County Prosecutor,
              attorney for appellant (Erin M. Campbell,
              Assistant Prosecutor, on the brief).

              Joseph E. Krakora, Public Defender, attorney
              for respondent (John Douard, Assistant Deputy
              Public Defender, of counsel and on the brief).

PER CURIAM

        The State appeals from a March 30, 2017 order dismissing the

indictment against defendant Carlos Campos with prejudice on the

basis that he was not competent to stand trial.                  The court also
ordered that defendant be civilly committed pursuant to 
N.J.S.A.

30:4-27.10.   We affirm substantially for the reasons stated by

Judge John A. Young, Jr. in his comprehensive written opinion that

accompanied the order.

     The record before us discloses that defendant was exhibiting

abnormal behavior and experiencing delusions before the crimes

that form the basis of this appeal.       In the summer of 2010,

defendant began acting paranoid, reported hearing voices, and

believed people were out to kill him.        On January 18, 2011,

following a psychiatric evaluation, defendant was diagnosed as

having "depressive psychosis."   Three days later, a social worker

diagnosed him with "adjustment disorder with mixed disturbance of

emotions and conduct."   On March 16, 2011, defendant was diagnosed

with delusional disorder and it was recommended that he begin

treatment.

     On August 16, 2011, defendant was arrested and charged with

stabbing to death his parents and three-year-old niece.    The next

day, two psychiatrists at Jersey City Medical Center conducted a

screening and determined defendant was mentally ill and a danger

to others.    Consequently, defendant was involuntarily committed

to Anne Klein Forensic Center (AKFC) on August 18, 2011.

     In January 2012, a Hudson County grand jury indicted defendant

for three counts of murder, 
N.J.S.A. 2C:11-3(a)(1) or N.J.S.A.

                                 2                          A-3717-16T1
2C:11-3(a)(2); three counts of unlawful possession of a weapon,


N.J.S.A. 2C:39-5(d); and three counts of possession of a weapon

for an unlawful purpose, 
N.J.S.A. 2C:39-4(d).

     Kenneth J. Weiss, M.D., a forensic psychiatrist, evaluated

defendant on April 30, 2012.          In his May 18, 2012 report to

defendant's attorney, Dr. Weiss indicated defendant "has a serious

mental     illness,   which   was   present   prior   to   the   incident,

immediately     thereafter    (supporting     civil   commitment),      and

currently."        Dr. Weiss opined that, "because of his ongoing

delusions and grossly deficient judgment, [defendant] would not

be able to participate meaningfully in his defense and he would

not be able to assist counsel with a reasonable degree of rational

understanding of his legal position."           He concluded, "[it] is

possible    that    [defendant's]   condition   can   be   improved    with

treatment, but such treatment would have to take place in a

facility such as AKFC."

     On July 30, 2012, the court ordered defendant to undergo an

evaluation at AKFC to determine his fitness to stand trial.

Defendant was evaluated by Peter D. Paul, Ph.D., a licensed

psychologist employed at AKFC, on October 4, 2012, and November

14, 2012.     Dr. Paul opined "defendant does not meet the criteria

to be considered competent to stand trial as defined in N.J.S.A.

2C:4-4."    He added, "[b]ecause [] defendant's psychiatric symptoms

                                     3                             A-3717-16T1
clearly were present prior to the current crimes, it is not likely

that he is feigning psychiatric symptom[s] to avoid criminal

prosecution.   He has been consistent in his symptom presentation."

     Judge Young conducted a competency hearing on January 15,

2013.   Dr. Paul testified defendant was not competent because he

lacked the ability to participate in his own defense due to his

delusional thinking pattern.       He opined defendant needed inpatient

psychiatric treatment, and he could not predict whether defendant

"can ever become competent based upon his delusional thinking and

his delusional belief system. . . ."            The next day, Judge Young

issued an oral opinion in which he found Dr. Paul "very credible"

and concluded defendant was not competent to stand trial because

of his inability to assist in his defense.              Based on Dr. Paul's

testimony, the judge further found it "possible that this type of

illness can be stabilized through medication and treatment, which

may result in [defendant] regaining competency."               On January 17,

2013, the judge entered an order continuing defendant's commitment

at AKFC.

     On September 5, 2013, AKFC psychiatrist Douglas Smith, M.D.,

found   defendant   was   not   fit   to    stand    trial   "due   to   ongoing

delusional ideas regarding his case."               However, he did find it

"probable   that,    with       continued     treatment      and    medication



                                      4                                  A-3717-16T1
adjustments, [defendant] could attain fitness in the foreseeable

future."

     Judge Young held a second competency hearing on January 2,

2014, at which the parties stipulated to Dr. Smith's report. Based

on the undisputed evidence, the judge found defendant was not

competent and, in a February 19, 2014 memorializing order, he

continued defendant's commitment at AKFC.

     AKFC psychiatrist Elizabeth Hogan, M.D., diagnosed defendant

with schizophrenia in a June 10, 2014 competency evaluation report.

She concluded:

           In summary, while [defendant] has an adequate
           factual      understanding      of      criminal
           proceedings, he continues to have significant
           limitations in his ability to assist counsel
           and meaningfully participate in his own
           defense.    His limitations are due to his
           symptoms   of     mental    illness    including
           delusional    thinking    and   suspiciousness.
           Specifically,    he   has   rigid   and   likely
           delusional beliefs about the evidence against
           him and how he can win his case.           These
           symptoms continue to limit his ability to have
           meaningful discussions with his counsel in the
           preparation of his defense.          For these
           reasons[,] he is unfit to proceed, as he has
           been in previous evaluations.

           However, in the time since his last competency
           evaluation, his delusional thinking has
           improved to a limited extent and is overall
           less rigid than it has been in the past. While
           he still has poor insight into his mental
           illness and delusional beliefs, he is less
           rigid with respect to the delusion that he is
           on a TV show (although he still cannot

                                  5                           A-3717-16T1
             identify the belief as being a delusion).
             Given his progress, it is my opinion that with
             continued treatment he can be restored to
             fitness in the reasonably foreseeable future.

      Defendant's third competency hearing took place on June 12,

2014.   The parties stipulated to Dr. Hogan's report.                   The next

day, Judge Young entered an order memorializing his finding that

defendant had not regained his fitness to proceed to trial, and

continued defendant's commitment at AKFC.

      Defendant's treating psychiatrist at AKFC, Joanna Bajgier,

D.O., authored the next competency evaluation report on November

14, 2014.     Dr. Bajgier concluded defendant's "psychosis improved"

since his previous evaluations, that he was presently competent

to   stand   trial,   and   he   would       likely   remain   competent    if    he

continued treatment.

      The defense again had defendant evaluated by Dr. Weiss in

December     2014.    Dr.   Weiss   found        defendant     was   experiencing

homicidal ideations, and he communicated that finding to Dr.

Bajgier's supervisor, Dr. Hogan.              In a March 2, 2015 addendum to

her earlier report, Dr. Bajgier opined that defendant remained

competent to stand trial.         She also noted, "[a]lthough I believe

[defendant] is malingering symptoms at this time, it is also my

opinion that [defendant] does suffer from [s]chizophrenia.                       His

symptoms are treated and not currently active." Dr. Weiss reviewed


                                         6                                 A-3717-16T1
this addendum and, in a March 17, 2015 report, repeated his opinion

that defendant was not malingering and remained incompetent to

stand trial pursuant to 
N.J.S.A. 2C:4-4(g).

     The defense also arranged to have defendant evaluated by

psychiatrist Daniel P. Greenfield, M.D.        Dr. Greenfield submitted

reports dated May 11, 2015, and July 29, 2015, agreeing with Dr.

Weiss that defendant was not competent and not malingering.

     Judge Young conducted a fourth competency hearing on August

4 and 5, 2015, at which Doctors Bajgier, Weiss, and Greenfield

testified consistent with their reports.       The judge issued an oral

opinion on October 6, 2015, in which he noted Dr. Bajgier had been

on leave and was therefore unable to meet with defendant between

May and August 2015.        The judge found Dr. Bajgier's conclusions

that defendant was presently competent and malingering were not

supported by the evidence and were "extensively refuted by the

testimony of Dr. Weiss and Dr. Greenfield," whose opinions he

found credible and reliable.       The judge did credit Dr. Bajgier's

testimony   that,   after    defendant's   medication   was   adjusted    in

August 2014, he was competent in November 2014.               Although the

judge found defendant's competency was short-lived, this did lead

him to conclude there was a substantial probability defendant

could regain competency within the foreseeable future.



                                    7                              A-3717-16T1
       Dr. Bajgier authored additional reports on April 4, 2016, and

July 28, 2016, in which she again concluded defendant was competent

and malingering.         In her view, defendant "understands what is

happening in court and that the outcomes are unrelated to his

claim of the Illuminati controlling the case."                     On June 1, 2016,

Dr. Greenfield submitted an updated report in which he again opined

that    defendant    "ha[s]       a    stable      fixed    delusion       about     the

determinative     role    of   the     Illuminati     and    of    his    being    in   a

television      show."     That       fixed    delusion     impaired      defendant's

ability    to    participate      rationally       with     defense      counsel     and

rendered   him    incompetent         to   stand    trial    for    the    reasonably

foreseeable future.

       Defendant's fifth and final competency hearing was held on

August 2, 2016.     Once again, Dr. Bajgier testified extensively for

the State, as did Dr. Greenfield on behalf of defendant.                           Judge

Young also engaged defendant in a colloquy, during which defendant

exhibited an understanding of the charges; the respective roles

of his attorney, the prosecutor, and the judge; and his right to

a jury trial.      However, defendant told the judge: it was "hard to

accept advice" from his attorney; he believed he was in a reality

show; he did not wish to "snitch" on the Illuminati, who ran the

world, including the court system; he talked to the Illuminati on

the radio about whether he had to kill; and before he was arrested

                                           8                                  A-3717-16T1
the Illuminati "follow[ed] [him] around . . . in white Comcast

vans everywhere [he] went."       Following this colloquy, defense

counsel informed the court he had difficulty "communicating with

[defendant] with a reasonable degree of rational understanding"

during the five-year period he represented defendant.

    Following oral argument on November 3, 2016, Judge Young

issued a comprehensive twenty-page written opinion on March 30,

2017,   dismissing   the   indictment   with   prejudice.   The     judge

concluded:

           After careful review of the record and in
           light   of   the   evidence   supporting  the
           conclusion    that    [d]efendant    is   not
           malingering, I find Dr. Bajgier's conclusion
           that [d]efendant is malingering not credible.
           I find Dr. Greenfield's conclusion that
           [d]efendant is not malingering credible,
           particularly in light of the [c]ourt's
           questioning of [d]efendant. As such, I find
           the State has failed to establish [d]efendant
           is   competent   and   I   specifically  find
           [d]efendant is not competent to stand trial.

           The dialogue the [c]ourt engaged in with []
           [d]efendant demonstrates that he cannot
           discuss the case or his defense in more depth
           with his attorney because he believes it would
           be considered "snitching" on the Illuminati.
           His belief that the Illuminati controls the
           court system and the world ultimately means
           they control the outcome of his case,
           regardless of his interaction with his defense
           attorney and participation in his defense.
           His responses illustrate that he is not
           rationally competent to stand trial.       The
           State has failed to establish [d]efendant's
           competency by a preponderance of the evidence.

                                   9                              A-3717-16T1
      Judge Young next looked to the factors enumerated in 
N.J.S.A.

2C:4-6(c) to determine whether defendant's criminal charges should

continue to be held in abeyance or instead be dismissed.           In

weighing those factors, the judge determined:

               During the course of defendant's case,
          save for only one very short period in 2014,
          he has never exhibited signs of substantial
          improvement   in   terms   of    his   rational
          competence despite different medications and
          dosages.   On October 6, 2015, this [c]ourt
          found . . . that Dr. Bajgier's conclusion on
          November 14, 2014[,] that [d]efendant was
          competent[,] to be credible insofar that
          [d]efendant was competent for a short window
          of time in November 2014[,] due to a change
          in medication.    Despite a finding of brief
          competency in November 2014, I find that the
          short period of competency . . . was an anomaly
          and it is not substantially probable that
          [d]efendant will regain competency. One month
          after Dr. Bajgier's 2014 report, [d]efendant
          reported to Dr. Weiss that he was experiencing
          homicidal ideations, indicating that he was
          no longer competent.     Approximately twenty
          months have elapsed from the short window of
          competency in November 2014 to the fifth
          competency hearing in August 2016[,] and in
          that time [d]efendant has not shown any signs
          of regaining competency.

               Dr.   Greenfield    testified   and   has
          consistently found that it is not likely that
          [d]efendant will regain rational competency in
          the foreseeable future.       Moreover, these
          delusions began prior to the commission of the
          present offenses.   In light of these facts,
          [d]efendant's    likelihood    of    regaining
          competency is far from probable. This is the
          fifth competency hearing over a period of five
          years for this [d]efendant. [] Defendant has
          never been found competent by this [c]ourt.

                               10                           A-3717-16T1
Defendant's involuntary commitment began two
days after his arrest on August 18, 2011[,]
and continued until October 12, 2011, at which
time he was transported to the Hudson County
Correctional Facility.     He remained there
until he was transported back to AKFC on April
16, 2013. He has been at AKFC ever since. He
has been institutionalized at AKFC for a total
period of approximately three years and ten
months.     Despite this extended term of
institutionalization    and    the    services
provided at AKFC to restore him to competency,
[d]efendant has never regained competency.

     "In weighing the effects of delay on the
defendants and prosecution, the judge should
consider     availability     of      witnesses,
preservation of evidence, and the extent to
which the delay may have resulted from causes
attributable to the defense, including the
several professional examinations made after
the issue of competency was raised by
defendant."    [State v. Moya, 
329 N.J. Super 499, 515 (App. Div. 2000)]. Here, the passage
of time from the date of the offense to present
is   over    five   years.       This    affects
[d]efendant's and the State's ability to call
witnesses and preserve evidence.         Because
memories fade with time, it would be difficult
for a prospective witness to recall events
leading up to the offense.       It would also
impact [d]efendant's ability to present a
defense.      [The] [d]efense asserts that
witnesses    who    could    testify     as    to
[d]efendant's behavior prior to the offense
would be crucial to an insanity defense,
demonstrating to this [c]ourt that [d]efendant
would be prejudiced if the case were to
proceed to trial in the distant future.
Additionally, defense counsel asserted at the
fifth    competency    hearing     that     after
representing [d]efendant for over five years
he still does not have a firm grasp of the
facts   of   the   case   because    he   cannot
effectively communicate with [d]efendant due

                      11                            A-3717-16T1
            to [d]efendant's delusions.   The passage of
            time exacerbates this problem as it affects
            [d]efendant's   ability   to  recall    events
            relevant   to   a   defense,  which    further
            prejudices [] [d]efendant.      There is no
            evidence   presented   that  the    delay   in
            prosecution can be attributed to the defense.

                 This     [c]ourt     acknowledges     the
            seriousness of the charges against [d]efendant
            and the public's interest in prosecuting
            serious offenses.       However, the public
            interest is not served by depriving []
            [d]efendant of his [c]onstitutional [r]ights.
            In light of the fact that [d]efendant has been
            incompetent for over five years and Dr.
            Greenfield's conclusion to a degree of
            reasonable medical certainty that he will
            never regain competence, the factors weigh in
            favor of dismissal.

                 It is not substantially probable that
            [d]efendant will regain his competence in the
            foreseeable future. The charges are dismissed
            with prejudice pursuant to 
N.J.S.A. 2C:4-6(c).
            Defendant presently poses a substantial risk
            to the safety of others in the community.

     Judge    Young   ordered   defendant   to   be   civilly   committed

pursuant to 
N.J.S.A. 30:4-27.10 upon dismissal of the indictment.

The State's appeal followed.

     On appeal, the State contends the trial court improvidently

dismissed the indictment.       Specifically, the State asserts the

trial court either misconstrued or failed to consider all the

factors enumerated in 
N.J.S.A. 2C:4-6(c) in dismissing the charges

against defendant rather than holding them in abeyance.                  We

disagree.

                                   12                             A-3717-16T1
     "The test for competency to stand trial arises from basic

concepts of due process."   State v. Purnell, 
394 N.J. Super. 28,

47 (App. Div. 2007); State v. M.J.K., 
369 N.J. Super. 532, 547

(App. Div. 2004).   When a defendant is tried while incompetent to

stand trial, that defendant has been deprived of his due process

right to a fair trial.   State v. Cecil, 
260 N.J. Super. 475, 480

(App. Div. 1992).

     In a competency proceeding, the State has the burden of

proving competence to stand trial by a preponderance of the

evidence.    State v. Gorthy, 
226 N.J. 516, 530 (2016).         At a

minimum, the State must show that the defendant has sufficient

present ability to consult with his lawyer with a reasonable degree

of rational understanding and a rational as well as factual

understanding of the proceedings against him.     Purnell, 
394 N.J.

Super. at 47 (citing Dusky v. United States, 
362 U.S. 402, 402

(1960)).

     The test for competency to stand trial in New Jersey is

codified in 
N.J.S.A. 2C:4-4, which provides in part: "No person

who lacks capacity to understand the proceedings against him or

to assist in his own defense shall be 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 proofs must establish that the

defendant understands his presence in a courtroom facing criminal

                                  13                         A-3717-16T1
charges; the roles of the judge, prosecutor and defense attorney;

his rights and the consequences of waiver of the same; and his

ability to participate in his own defense.   
N.J.S.A. 2C:4-4(b).

     Our Supreme Court has recently noted:

          An important component of the inquiry is the
          question whether the defendant has the
          capacity to assist in his or her own defense.
          See 
N.J.S.A. 2C:4-4(a) (barring prosecution of
          person lacking capacity to "assist in his own
          defense");      N.J.S.A.       2C:4-4(b)(2)(g)
          (identifying "the ability to participate in
          an adequate presentation of his defense" as
          factor in competency determination). . . .
          The question of a defendant's ability to
          assist in his or her defense turns on whether
          his   or   her  mental   condition   precludes
          meaningful interaction with his or her
          attorney with respect to the pending charges
          and the trial.

          [Gorthy, 
226 N.J. at 532-33].

     When, as here, a court finds a defendant not competent to

stand trial, there is a presumption that the charges against him

or her "shall be held in abeyance."   
N.J.S.A. 2C:4-6(c).

          The presumption can be overcome only if the
          court determines, using the factors set forth
          in this subsection, that continuing the
          criminal prosecution under the particular
          circumstances of the case would constitute a
          constitutionally significant injury to the
          defendant attributable to undue delay in being
          brought to trial.

          In determining whether the charges shall be
          held in abeyance or dismissed, the court shall
          weigh the following factors: the defendant's
          prospects for regaining competency; the period

                               14                           A-3717-16T1
            of time during which the defendant has
            remained incompetent; the nature and extent
            of the defendant's institutionalization; the
            nature and gravity of the crimes charged; the
            effects of delay on the prosecution; the
            effects of delay on the defendant, including
            any likelihood of prejudice to the defendant
            in the trial arising out of the delay; and the
            public interest in prosecuting the charges.

            [Ibid.]

      Our review of a trial court's competency determination must

be "typically, and properly, highly deferential."                   M.J.K., 
369 N.J. Super. at 548 (quoting Moya, 
329 N.J. Super. at 506).                 We do

not review the factual record to determine how we would decide the

matter if we were a court of first instance.              State v. Johnson,


42 N.J. 146, 161 (1964).        Moreover, a trial court's determination

on   the   subject    of   competency    will   be   sustained     if   there   is

sufficient supporting evidence in the record.             Purnell, 
394 N.J.

Super. at 50.

      We are satisfied that Judge Young's findings that defendant

was neither competent to stand trial nor likely to regain his

competence in the foreseeable future are adequately supported by

the record. Here, the judge relied heavily on the expert testimony

of Dr. Greenfield, which he found more credible and reliable than

that of the State's expert, Dr. Bajgier.             It is well-settled the

judge had the right to credit Dr. Greenfield rather than Dr.

Bajgier,    notwithstanding      the    latter's     status   as    defendant's

                                        15                               A-3717-16T1
treating psychiatrist.          Where qualified experts present opposing

opinions on disputed issues, the trier of fact may accept the

testimony or opinion of one expert and reject the other.                       Angel

v. Rand Express Lines, Inc., 
66 N.J. Super. 77, 85-86 (App. Div.

1961).        This principle flows out of the well-known proposition

that    jurors,      or   a   judge   in    a   bench   trial,   have    the   best

"opportunity to hear and see the witnesses and to get a 'feel' for

the case that the reviewing court [cannot] enjoy."                      Twp. of W.

Windsor v. Nierenberg, 
150 N.J. 111, 132 (1997) (quoting State v.

Whitaker, 
79 N.J. 503, 515-16 (1979)).

       Contrary to the State's assertion, Judge Young carefully

considered all the factors enumerated in 
N.J.S.A. 2C:4-6(c).                      He

determined, based upon all the evidence before him, that defendant

would suffer undue delay in being brought to trial, resulting in

a constitutionally significant injury warranting dismissal of the

indictment.       See State v. Gaffey, 
92 N.J. 374, 389 (1983) (holding

"a criminal indictment shall be dismissed with prejudice under


N.J.S.A. 2C:4-6(c) when it is determined that an adequate period

of     time    has   elapsed    during      which   the   defendant      has   been

institutionalized and has remained unfit to be tried").                  Given our

highly deferential standard of review, we find no basis to disturb

this determination.

       Affirmed.

                                           16                              A-3717-16T1


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