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State v. Levien

New Jersey Supreme Court

Decided: April 12, 1965.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J. Proctor, J., concurs in result.


[44 NJ Page 325] On September 11, 1942 Gardner LeVien was adjudged insane by the Bergen County Court of Common Pleas, and ordered confined at the New Jersey State Hospital at Greystone Park. About a year later he assaulted two other patients, choking them to death. Immediately thereafter, by order of the Commissioner of the Department of Institutions and Agencies, LeVien was transferred to the State Hospital at Trenton to be held in special custody in a maximum security unit. He has remained a patient in this

[44 NJ Page 326]

institution to date; his present diagnosis being "Schizophrenic reactions, paranoid type, with guarded prognosis."

The cost of LeVien's maintenance during his confinement, amounting to $24,992.09, has been borne by the State of New Jersey and the County of Bergen. (Although originally indigent, defendant stipulates that LeVien's present assets exceed this amount.) Suit was instituted by them against Le Vien's guardian and a judgment in that amount was awarded by Judge Gordon H. Brown sitting without a jury. 82 N.J. Super. 29 (Law Div. 1963). While the appeal was pending in the Appellate Division, we granted certification on our own motion.

We are in agreement with the conclusion of Judge Brown that LeVien's confinement in the Trenton State Hospital has been in a "charitable" institution (N.J.S.A. 30:1-7) and therefore the cost of his maintenance is allocable to his estate under N.J.S.A. 30:4-66 which provides:

"Every patient supported in a State charitable institution shall be personally liable for his maintenance and for all necessary expenses incurred by the institution in his behalf * * *."

However, defendant contended before Judge Brown and before us that he had a right to have had criminal proceedings brought against him in 1943 after the killings, that he would have been adjudged criminally insane, and that as a "criminal insane" the State and not he would have been liable for his maintenance.*fn1


As to the first contention, we find no authority which would permit one who commits a crime to insist on the State's instituting criminal proceedings. It is the prosecutor

[44 NJ Page 327]

who in the first instance has the discretion in such circumstances. See Hassan v. Magistrates Court of City of New York, 20 Misc. 2 d 509, 191 N.Y.S. 2 d 238 (Sup. Ct. 1959), cert. denied 364 U.S. 844, 81 S. Ct. 86, 5 L. Ed. 2 d 68 (1960); Leone v. Fanelli, 194 Misc. 826, 87 N.Y.S. 2 d 850 (Sup. Ct. 1949); Graham v. Gaither, 140 Md. 330, 117 A. 858 (Ct. App. 1922); Murphy v. Sumners, 54 Tex. Cr. R. 369, 112 S.W. 1070 (Crim. App. 1908); Note, "Prosecutor's Discretion," 103 U. Pa. L. Rev. 1057 (1955); Schwartz, "Federal Criminal Jurisdiction and Prosecutors' Discretion," 13 Law & Contemp. Prob. 64 (1948). He has the duty to

"investigate, i.e., inquire into the matter with care and accuracy, that in each case he examine the available evidence, the law and the facts, and the applicability of each to the other; that his duties further require that he intelligently weigh the chances of successful termination of the prosecution, having always in mind the relative importance to the county he serves of the different prosecutions which he might initiate. Such duties of necessity involve a good faith exercise of the sound discretion of the prosecuting attorney. 'Discretion' in that sense means power or right conferred by law upon the prosecuting officer of acting officially in such circumstances, and upon each separate case, according to the dictates of his own judgment and conscience uncontrolled by the judgment and conscience of any other person. Such discretion must be exercised in accordance with established principles of law, fairly, wisely, and with skill and reason. It includes the right to choose a course of action or non-action, chosen not willfully or in bad faith, but chosen with regard to what is right under the circumstances. * * *" State on Inf. McKittrick v. Wallach, 353 Mo. 312, 182 S.W. 2 d 313, 318-319, 155 A.L.R. 1 (Sup. Ct. 1944).

(Quoted with approval in State v. Winne, 12 N.J. 152, 172-173 (1953).) Herein the Prosecutor of Morris County in a letter to the Attorney General, dated November 16, 1962, made his position clear and decided not to prosecute.

"Considering all the circumstances involved and that the subject was an insane inmate at the time of the commission of the crimes, it is not my intention to proceed in the matter in any way if it were later determined that he has regained sanity."

We fail to find any abuse of his discretion.

[44 NJ Page 328]

Defendant also claims that his contention is buttressed by the Federal and New Jersey constitutional provisions pertaining to a speedy trial.*fn2 These provisions are of no help to LeVien. "[The] right to a speedy trial * * * is one that arises after a formal complaint is lodged against the defendant in a criminal case." Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 350 (9 Cir. 1951), cert. denied, 343 U.S. 935, 72 S. Ct. 772, 96 L. Ed. 1343 (1952). And in People v. Jordan, 45 Cal. 2 d 697, 290 P. 2 d 484, 491 (1955), the Supreme Court of California stated:

"[Defendants urge] that [they] were deprived of their right to a speedy trial because the prosecution failed to obtain an indictment until over a year after the cab murder took place. There is no statute of limitation as to murder. Penal Code, § 799. * * *. The constitutional guarantees of a speedy trial, U.S. Const., VI Am; State Const. art. I, § 13, were not violated. One does not become an 'accused' until the filing of a complaint or other charge."

See also Foley v. United States, 290 F.2d 562, 565 (8 Cir.), cert. denied 368 U.S. 888, 82 S. Ct. 139, 7 L. Ed. 2 d 88 (1961); Venus v. United States, 287 F.2d 304, 307 (9 Cir. 1960), affirmed 368 U.S. 345, 82 S. Ct. 384, 7 L. Ed. 2 d 341 (1961); Parker v. United States, 252 F.2d 680-681 (6 Cir.), cert. denied 356 U.S. 964, 78 S. Ct. 1003, 2 L. Ed. 2 d 1071 (1958); State v. Vawter, 236 Or. 85, 386 P. 2 d 915,

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917-918 (Sup. Ct. 1963). Cf. Mann v. United States, 113 U.S. App. D.C. 27, 304 F.2d 394 (D.C. Cir.), cert. den. 371 U.S. 896, 83 S. Ct. 194, 9 L. Ed. 2 d 127 (1962). We conclude that these constitutional safeguards are not here appropriate.

It may well be as suggested by defendant that a subsequent prosecutor may decide to institute criminal proceedings. If so, LeVien may at that time have the opportunity to invoke possible constitutional rights.*fn3


Defendant also contends that a criminally insane person is entitled to be maintained by the State and the county of his legal settlement even if he is not indigent. We disagree, for even if LeVien had been adjudged a "criminal insane," he would have been liable for his maintenance.

LeVien relies primarily on R.S. 30:4-78 which provides in part:

"The state house commission shall likewise fix the rate or rates to be paid for the maintenance and clothing of the convict and criminal insane in any state institution, which rate or rates shall be paid by the state in the case of state patients, and in the case of county patients, the same rate or rates shall be paid, to be divided between the state and county in the proportion of three on the part of the state and two on the part of the county."

[44 NJ Page 330]

Contrary to defendant's position, this section was enacted in order to settle the relationship between the State and county regarding moneys paid for maintenance of indigent patients. The original title to this section so states, i.e., "Relation Between State and County Regarding Moneys Paid For Maintenance of Indigent Patients." L. 1918, c. 147, § 501, p. 399.

N.J.S.A. 30:4-60, 66 and 80.1*fn4 make clear that the cost of maintenance of patients admitted or committed to a charitable institution pursuant to Title 30 is to be borne by the financially able patient or certain members of his family. Cf. In re Truslowe, 42 N.J. Super. 23 (Juv. & D.R. Ct. 1956). Moreover, the Department of Institutions and Agencies has so interpreted this statute. Indeed, plaintiffs inform us that there are patients now confined at the Trenton State Hospital who were unable to stand trial, or who were exempt from prosecution, or who were transferred from confinement under sentence, all of whom are contributing, to the extent able, to the cost of their maintenance.*fn5

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One whose route to a charitable institution has been tainted by a criminal proceeding occupies neither a unique nor a preferred position. The concept of forcible detention so obviously present in the case of one subjected to a criminal proceeding applies equally to a patient not similarly experienced. The Legislature did not intend to exempt from liability for maintenance "criminal" patients while requiring civil patients to bear this financial obligation. Such a result would be illogical and inequitable.

No one contends that the State should not support a needy patient whether criminally or civilly committed. But neither should the State nor its taxpayers be burdened with the cost of maintaining one who is financially able to pay.


PROCTOR, J., concurs in result.

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