On appeal from the Superior Court, Law Division, Somerset County.
Antell, Long and D'Annunzio. The opinion of the court was delivered by Long, J.A.D.
On June 20, 1986, the Somerset County grand jury returned an indictment charging defendant Jay Hass with two counts of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(c) (Counts One and Two); one count of criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (Count Three) and one count of sexual assault, contrary to N.J.S.A. 2C:14-2(b) (Count Four). The indictment claimed that between December 1, 1985, and April 20, 1986, the crimes charged in Counts One, Two and Three were perpetrated against B.C., who was then between 13 and 16 years old, and that the crime charged in Count Four was perpetrated against B.C.'s brother, K.C., who was then under 13 years of age. Hass, who became friendly with the two youths and their family through a volunteer program, was alleged to have been more than four years older than each victim at the time of the offenses.
Hass filed two motions with respect to the indictment. The first was to obtain the school and medical records of the victims and to require that they submit themselves for psychiatric and psychological evaluations. In support of this motion, Hass submitted his own certification and that of two other individuals which indicated, among other things, that B.C., who was 15 years old, repeated eighth grade three times; still defecated in his pants (functional encopresis); was involved in a juvenile offense; claimed to have had incestuous relations with his sister, and that K.C. was jealous of Hass' friendship with his brother and held a grudge against him.
After hearing argument on the motion, the trial judge entered an order directing that the requested records be delivered to him for in camera inspection. The balance of the relief sought was reserved. Thereafter the trial judge denied the motion in its entirety. In so doing, he stated that he had reviewed the records of both B.C. and K.C. from Bound Brook Public School and also the record of an evaluation of B.C. by the Richard Hall Mental Health Center. As to K.C., he concluded that there was no evidence at all justifying an examination by a psychiatrist. With respect to B.C. he continued:
While B.C.'s school records for [the] 85-86 term revealed that he is not a "top" student, his performance according to those records on the standardized testing was the same as that made by any typical student in the 9th grade at the start of the first month. I am well aware that B.C. was 15 years old when he was in the 8th grade and that children in that grade are usually about 13 years. However, this, in and of itself, is not a sufficient reason to order that B.C. be subjected to psychiatric or psychological testing.
Furthermore, I reviewed the records submitted by the Richard Hall Community Mental Health Center regarding B.C. B.C. was seen in the center on March 11, 1985. And though stating that B.C. appeared immature, the only indication of possible problems with B.C. was the functional encopresis. I am not sure whether this problem still exists or whether its origin is physical or mental. It too is an insufficient ground warranting the granting of the defendant's motion.
The Supreme Court recently stated that in order to satisfy the substantial need criteria for psychiatric examination, "there must be a showing of some deviation from acceptable norms, such as an identifiable or clinical psychiatric or similar disorder, beyond the realm of those human conditions that ordinary experience would confirm as normal. Absent persuasive evidence of potential incompetence, mere allegations of a disorder or unusual condition bearing upon competence do not constitute sufficient showing to justify a psychiatric examination."
As noted previously, that evidence has not been produced. And it does not appear in any of the records examined by the courts.
Hass challenges these conclusions.
We agree with the trial judge that there was insufficient evidence produced by Hass or present in the records (which we have reviewed) to justify a psychiatric examination of K.C. We thus affirm his decision as to K.C. With respect to B.C. however, we must part company with the ...