On certification to the Superior Court, Appellate Division.
For remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Pollock, Handler and O'Hern. Opposed -- None. The opinion of the Court was delivered by Handler, J.
The New Jersey Code of Criminal Justice provides for the dismissal of criminal charges against a defendant who has been adjudged incompetent where either the defendant has remained unfit to stand trial for a sufficient period of time (N.J.S.A. 2C:4-6c), or it is "not substantially probable that the defendant will regain his competence in the foreseeable future" (N.J.S.A. 2C:4-6e). In this case, the defendant Daniel Gaffey was charged with various crimes involving an arson which resulted in the deaths of several persons. These criminal charges were dismissed pursuant to N.J.S.A. 2C:4-6 because of defendant's incompetence. The issue presented on this appeal is whether the dismissal is with or without prejudice.
The crimes attributed to Gaffey occurred on April 20, 1977 when he assertedly set fire to a building. Two days following the commission of the crimes, Gaffey, who was then in the military service, was hospitalized for psychiatric illness at Fort Dix, New Jersey. A week later he was transferred to a military hospital at Fort Gordon, Georgia, where a medical board diagnosed Gaffey as an acute paranoid schizophrenic, declared him unfit for further military duty and ordered him discharged. On June 6, 1977 defendant entered the Veterans' Administration
Hospital in Lyons, New Jersey. He was indicted on June 6, 1978 for murder, murder by arson, arson and related crimes.
By order dated March 19, 1979, almost two years after the commission of the crimes, the trial court had defendant transferred to the Trenton State Psychiatric Facility for evaluation. On November 14, 1979 the defense moved for an order pursuant to N.J.S.A. 2C:4-6 declaring Gaffey incompetent to stand trial and dismissing the indictment. After hearing expert psychiatric testimony from the defense and the State, the court by order dated November 21, 1979 declared defendant incompetent to stand trial and committed defendant to the Trenton Psychiatric Hospital but denied his request for dismissal of the indictment. It also ordered a further hearing in six months as provided in N.J.S.A. 2C:4-6c.
On February 15, 1980 defendant again moved for dismissal of the indictment. A hearing on the motion was held on April 2, 1980, at which time the court received further expert testimony on defendant's psychiatric condition. The trial court, applying the standard of N.J.S.A. 2C:4-6e, rendered an opinion on May 6, 1980 determining that there was no substantial probability that defendant would regain his competence in the foreseeable future. It issued an order on June 11, 1980 dismissing the indictment and civilly committing defendant to the Trenton Psychiatric Hospital. The court's order did not specify whether it had dismissed the indictment with prejudice or without prejudice.
On August 4, 1980 the State filed an appeal from the trial court's order dismissing the indictment. In its initial brief to the Appellate Division the State argued that the trial court had dismissed the indictment prematurely, that it had improperly evaluated and misapplied the expert testimony, and that judicial determination of the probability for defendant's recovery should have been postponed so that defendant's progress could be observed. During oral argument in the Appellate Division, the court raised the issue of whether the dismissal was with or without prejudice. The court granted leave for submission of
supplemental briefs on that issue. In lieu of a supplemental brief, the State submitted a letter advising the court that the most recent medical reports on Gaffey indicated a substantial deterioration in defendant's condition. The letter continued: "It is now clear to and accepted by the prosecution that Daniel Gaffey is not competent to proceed to trial and that there is no reasonable probability that he might be restored to competency within the foreseeable future." Further, the State requested permission to withdraw its appeal. The defendant submitted a supplemental letter brief contending that the dismissal should be with prejudice and requesting that the court adjudicate the merits of the appeal.
The Appellate Division in an unreported opinion refused to allow the State to withdraw its appeal and affirmed the trial court's order on the merits, holding that dismissal of the indictment "represented a sound exercise of the discretion of the trial judge. . . ." The court, however, declined to adjudicate whether the dismissal was with or without prejudice on grounds that the question was not ripe for resolution and should await future developments relating to defendant's competency and possible reindictment. The court also modified the trial court's order so as to direct that the prosecutor be given prior notice of all periodic review hearings of defendant's civil commitment pursuant to R. 4:74-7.
Defendant petitioned for certification on the single issue of whether a dismissal of an indictment pursuant to N.J.S.A. 2C:4-6 is with prejudice. The State filed no cross-petition, but argued in its letter brief in opposition to defendant's petition that certification should be denied because the issue was not ripe for adjudication. The Court granted certification on December 22, 1981. 89 N.J. 390.
We deal first with a threshold issue. As noted, the State unsuccessfully sought to withdraw its ...