Fritz, Polow and Joelson. The opinion of the court was delivered by Polow, J.A.D. Fritz, P.J.A.D. (concurring).
On December 31, 1979, following a commitment review hearing*fn1 pursuant to State v. Fields , 77 N.J. 282 (1978) the trial judge ordered that defendant "remain committed to the civil section of Trenton Psychiatric Hospital." Defendant's application for a new trial was denied on January 30, 1980 for the following reasons:
1. That Robert Lee Newsome continues to suffer from psychosis and organic brain damage;
2. That he constitutes a danger to himself and to society; and
3. That the interests of society, as well as the interests of the defendant can best be served by in-patient supervision at the Trenton Psychiatric Hospital (civil section).
We are thus called upon to determine whether the broad discretionary authority of the trial judge was mistakenly exercised in ordering continued commitment of appellant who had been previously acquitted of criminal charges by reason of insanity. Recognizing the extremely narrow scope of appellate review and according the trial judge's determination the utmost deference, we nevertheless conclude that the record fails to supply a legitimate justification for continuance of prevailing restraints on the liberty of committee-appellant. Hence, we reverse and remand for further proceedings as indicated below.
When he was approximately 19 years of age, in May 1975, appellant Robert Lee Newsome, was the victim of a brutal mugging whereby he sustained severe head injuries. He was ultimately transferred from East Orange General Hospital to the Essex County Hospital Center and diagnosed as suffering from diffuse encephalopathy. In January 1976 he was discharged to his mother's care. In June 1977 he was indicted for carnal abuse and impairing the morals of a minor. It is conceded that he engaged in a voluntary and consensual sexual relationship with his 12 year old "girlfriend."
At a competency hearing, the court found that appellant suffered marked intellectual impairment and memory deficiency for recent and remote events. In addition, Newsome had a history of psychotic symptoms and suffered from chronic brain syndrome with psychosis and mental retardation. The trial judge concluded that defendant was unable to appreciate that his sexual behavior with a 12 year old child was wrong. Hence, appellant was acquitted by reason of insanity and transferred from the Essex County Jail to the Essex County Hospital Center, a psychiatric facility.
Krol*fn2 hearings were conducted periodically and as of May 1, 1978, an order was entered for appellant's conditional discharge from the Essex County Hospital Center to an out-patient residential treatment program known as Project Right-On, operated by the Mount Carmel Guild in Newark. Although he eventually left the program in violation of the court's order, he did return on occasion to collect his mail and "see how things are going." He lived with members of his family and there is no evidence of any incident or problems involving appellant during the several months following his leaving the Right-On project until he was committed to Trenton Psychiatric Hospital on execution of a bench warrant issued by the court in November 1979.
At a hearing on December 20, 1979 two psychiatrists offered their opinions that Newsome was not dangerous to himself or others. Both concluded that there was no need for continued hospitalization although appellant continued to suffer from chronic organic brain syndrome and functioned at a mildly retarded level. He required medication to control a convulsive disorder resulting from his head injuries.
Both doctors were of the opinion that his mother could provide the committee with suitable structure and supervision, especially that necessary to insure his receiving regular medication.
Although counsel for the State agreed with the applicant that continued hospitalization was no longer necessary, by order of December 31, 1979 the court directed continued commitment to the civil section of Trenton Psychiatric Hospital. On this appeal, the State concedes that "in light of all of the information presently available with respect to appellant's condition, his continuing in-patient status is no longer required."
After the United States Supreme Court announced that the standard of involuntary commitment must "bear some reasonable relation to the purpose for which the individual is committed," Jackson v. Indiana , 406 U.S. 715, 738, 92 S. Ct. 1845, 1858, 32 L. Ed. 2d 435 (1972), the New Jersey statutory provision, N.J.S.A. 2A:163-3, was held unconstitutional because it permitted continued commitment of individuals suffering from slight mental illness. State v. Krol , 68 N.J. 236, 246-247 (1975). Nevertheless, the ultimate issue of "dangerousness," although it involves medical considerations, is a legal question for decision by the judge.
[W]hile courts in determining dangerousness should take full advantage of expert testimony presented by the State and by defendant, the decision is not one that can be left wholly to the technical expertise of the psychiatrists and psychologists. The determination of dangerousness involves 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]
Once the degrees of mental illness and "dangerousness" are determined, the judge is required to formulate an appropriate order providing for the least restrictive restraints found to be consistent ...