On appeal from the Superior Court, Law Division, Monmouth County.
Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.
The essential question raised by this appeal is whether N.J.S.A. 2A:104-6, creating and defining the indictable offense of escape, applies to and hence renders criminally culpable an unauthorized departure from a psychiatric institution by a person involuntarily committed thereto. We are convinced that it does not and accordingly, on that ground alone, we reverse the judgment of conviction here appealed from.
Defendant Leo Kyles, according to the composite medical records, is middle-aged, moderately retarded, and suffers from chronic undifferentiated schizophrenia, organic brain syndrome, and the residual effects of both a seizure disorder and alcoholism. He has a criminal record dating back to 1963 consisting primarily of such disorderly persons offenses as loitering, vagrancy and drunk and disorderly conduct. He had first been involuntarily committed to Marlboro Psychiatric Hospital in 1962 and had been recommitted from time to time for varying durations thereafter.
In August 1974 defendant was indicted on a charge of atrocious assault and battery. His history of mental illness having been brought to the attention of the court, a hearing was held pursuant to N.J.S.A. 2A:163-2 for the purpose of determining his sanity at the time of the crime. The judge found that he was insane at that time and that his insanity continued. Accordingly, he entered an order dismissing the indictment and committing defendant to the New Jersey State Hospital at Trenton. That disposition preceded both the decision of the New Jersey Supreme Court in State v.
Krol , 68 N.J. 236 (1975), and the court's promulgation of the extensive amendments of R. 4:74-7 dealing with civil commitments. The effect, however, of Krol was to make clear defendant's consequent status as a civil committee with the right to periodic review of the commitment pursuant to R. 4:74-7(f). Periodic reviews were in fact held, and as a result of the second such hearing defendant was, in December 1976, ordered immediately transferred to Marlboro Psychiatric Hospital.
Several months after defendant's transfer to Marlboro, in February 1977, he left the hospital premises to buy cigarettes and liquor and was apprehended while on his way to a nearby shopping center by hospital police who, although they apparently returned him to the institution, nevertheless filed a complaint charging him with escape pursuant to N.J.S.A. 2A:104-6. Two weeks later, however, he had yet another routine review hearing which resulted in an order, entered on March 1, 1977, continuing his involuntary commitment at Marlboro. The same judge who entered that order entered a superseding order on March 15, 1977 on the basis of the criminal complaint and the detainer then filed with respect thereto. That superseding order discharged defendant from the involuntary commitment and remanded him to the Monmouth County Correctional Institution.*fn1 On
April 6, 1977 an accusation was filed charging defendant with escape, and two weeks later, represented by a deputy assistant public defender, he waived indictment and trial by jury and pleaded guilty. He was sentenced to a term of 1-3 years in State Prison. We have been advised that he has since been transferred to the New Jersey State Hospital in Trenton.
Appellate counsel asserts a variety of challenges to the conviction, none of which were raised below, including the claim that the accusation failed to charge an offense. Such a claim is cognizable on appeal even if not raised at trial. R. 3:10-3. Accordingly, we have considered that issue and we decide it in defendant's favor since we are convinced that the escape statute was egregiously misapplied in this case and that the Legislature did not intend criminal culpability to attach to the wanderings of involuntarily committed persons suffering from mental illness.
The statute, N.J.S.A. 2A:104-6, encaptioned "Prisoners escaping or attempting to escape," reads in full as follows:
Any person imprisoned or detained in a place of confinement, or being in the lawful custody or control of a penal or correctional institution or of an officer or other person, upon any charge, indictment, conviction or sentence for any crime, or upon any writ or process in a civil action or proceeding, or to await extradition, who by force or fraud escapes or attempts to escape from such place of confinement or from such custody or control, or leaves the ...