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In re Commitment of Kenneth A. Calu

May 15, 1997


On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Approved for Publication May 15, 1997.

Before Judges Dreier, D'Annunzio and Newman. The opinion of the court was delivered by Newman, J.A.D.

The opinion of the court was delivered by: Newman

The opinion of the court was delivered by NEWMAN, J.A.D.

The committee, Kenneth A. Calu (Calu), appeals from an order of January 16, 1996 denying less restrictive conditions in his privileges while a committee at Ancora State Psychiatric Hospital (Ancora). The three specific requests recommended by the treatment team were: (1) that Calu be permitted to walk unescorted to and from his on-grounds job; (2) that Calu be granted one half hour per week of open hours privilege to begin after three months of successful unescorted walks to and from work; and (3) that Calu be permitted to attend escorted substance abuse programs in the community. These requests were denied.

The relevant background leading up to the 1995-1996 Krol review hearing is as follows. On September 12, 1983, Calu killed his wife and two children with a shotgun. After a non-jury trial, the Judge found Calu not guilty of these crimes by reason of insanity (NGI) and committed Calu to the Forensic Hospital in Trenton.

In November 1986, Calu was transferred to the Trenton Psychiatric Hospital. Calu was again transferred, in August 1989, to Ancora. Initially, the staff at Ancora placed Calu on Level One restrictions, the most restrictive of the classifications. On January 29, 1990, the court granted Calu partial Level Two privileges. In a March 16, 1992 order, Judge Thomas DeMartin permitted Calu "extended Level 2 privileges" which included on-ground treatment programs and activities, taking meals in a common cafeteria, and working on the grounds of the hospital. The Judge required that all of these activities be undertaken in a supervisory setting of no lower than a 6:1 ratio of patients to staff. Other requests for Level Three type freedoms were denied in that order. The court denied Level Three privileges because Calu had admitted to using marijuana and alcohol on hospital grounds during his confinement, had been gambling since his transfer to Ancora and violated other hospital regulations.

On June 7, 1993, Judge DeMartin continued the degree of confinement specified in the 1992 order. The court considered the fact that Calu had been placed on suicide prevention after gaining Level Two privileges. Calu was dropped to Level One privileges on September 30, 1992 after being found in the men's bathroom with his girlfriend. In light of these transgressions, other privileges recommended by the treatment team were not presented to the court at that June 1993 hearing. On August 5, 1994, the court continued the specifications of the 1992 order and denied Calu's request to walk to and from his job at Ancora unsupervised.

The 1995 Krol hearing began on October 18, 1995. Calu made a motion to have the hearing held in camera. Judge DeMartin denied the application.

The hearings took place on several dates through late 1995 and into January 1996. During these proceedings, the Mercer County Deputy First Assistant County Prosecutor entered an appearance on behalf of the State but later commented that she did not represent the State but, instead, appeared "on behalf of the people of Mercer County and the County itself." At the Conclusion of the hearings, in an order entered January 16, 1996, Judge DeMartin denied the three specific requests previously mentioned.

Before this appeal was calendared, the 1996 Krol hearing began on October 23, 1996 and concluded November 6, 1996. The trial court issued its decision on December 17, 1996, again concluding Calu was mentally ill and that he likely posed a danger to himself or society. The trial court denied any increase in privileges requested by Calu.

Because there has been a subsequent review hearing with the entry of an order, Calu's arguments relating to the less restrictive conditions requested at the late 1995/January 1996 hearing are mooted. We have no reason to review the proceedings because a new order has been entered based on a record that is not before us for review. Since Calu has already gone through the review process following his 1996 year of confinement, there is no remedy available for him even were we to find that there was anything wrong with Judge DeMartin's decision. We would not be ordering his release from the institution, but instead would remand for another hearing or place additional findings on the record. In essence, that has already been done. The mootness doctrine clearly applies. See New Jersey Turnpike Auth. v. Parsons, 3 N.J. 235, 240, 69 A.2d 875 (1949).

However, Calu raises other issues, which although presented at the hearing, are capable of repetition, yet evade review. New Jersey Div. of Youth & Family Servs. v. J.B., 120 N.J. 112, 118-19, 576 A.2d 261 (1990) (finding that the issue of press presence at a DYFS hearing, although technically mooted "is one of considerable public importance and capable of repetition, yet evading review"). These issues relate to whether an in camera hearing should have been held because Calu was not seeking his release nor was there any potential that he would be released; that the reviewing court lacked the authority to evaluate the inpatient restrictions and privileges of Calu; and that the participation in the Krol periodic ...

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