Before Judges Dreier, Keefe and Wecker.
The opinion of the court was delivered by: Dreier, P.j.a.d.
The opinion of the court was delivered by
The Passaic County Prosecutor appeals from a Law Division order denying his request to have the court direct a psychiatric examination of G.A., an individual who had been civilly committed following the termination of an extended jail term. During a period of apparent improvement, G.A. had been placed on a status denominated Conditional Extension Pending Placement (CEPP), and granted Level 3 privileges, enabling him to enjoy home visits and supervised work opportunities. Thereafter G.A. was accused of sexually assaulting a female patient and was arrested for possession of marijuana and alcohol, causing his downgrade to Level 1 status. Eventually, his condition improved and Level 3 freedoms were restored. The prosecutor opposed G.A.'s CEPP status and requested that he be involuntarily committed. To support his challenge, the prosecutor requested a psychiatric examination of G.A. by a psychiatrist appointed by the prosecutor. The Judge denied the motion and this appeal ensued. We note at the outset that this case and our discussion in no way implicates the court's inherent power, recognized by N.J.R.E. 614, itself to appoint and call an independent expert witness.
After a February 1978 indictment, G.A. was convicted of rape, rape while armed, and assault with intent to commit sodomy. He was sentenced to consecutive terms aggregating sixteen to nineteen years. G.A.'s prison term expired on January 8, 1995, but three days prior to his scheduled release, the court granted the State's request for a temporary order of commitment pursuant to N.J.S.A. 30:4-27.10, and involuntarily committed G.A. temporarily to Trenton Forensic Hospital. On February 23, 1995, G.A. was transferred to a less restrictive setting at Greystone Park Psychiatric Hospital, where he currently resides.
On April 11, 1995, the hearing Judge approved an order placing G.A. on CEPP based on testimony that revealed that he did not meet the criteria for continued commitment by clear and convincing evidence. Upon application by the prosecutor, the court stayed its April 11, 1995 order to allow him to present supplemental evidence as to G.A.'s need for involuntary commitment. Specifically, the court granted the prosecutor the opportunity to conduct an independent psychiatric evaluation of G.A. On May 16, 1995, based on supplemental evidence, the court found that G.A. suffered from a mental illness which caused him to be a danger to himself and to others, hence the court ruled that G.A. should remain involuntarily committed pending a new hearing.
On April 16, 1996, noting from a psychiatrist's report that G.A.'s behavior had improved and that he was complying with medication orders, the Judge placed him on CEPP and approved an order granting him Level 3 privileges. Under this status, G.A. was given increased privileges such as the right to attend work in training under supervision and home visits. The prosecutor requested a stay of the April 16, 1996 order, but the court denied the motion. Soon G.A. began home visits.
On September 4, 1996, police were called to Greystone to investigate a report that G.A. had sexually assaulted a female patient. G.A. admitted to having consensual physical contact with the female patient, but he denied having sexual intercourse with her. He was not formally charged because the female patient was found to be mentally incompetent and unable to provide consistent testimony. While this allegation was being investigated, G.A.'s Level 3 privileges were suspended.
G.A. was evaluated on October 17, 1996, and diagnosed with schizophrenia, chronic paranoid type in partial remission (showing no signs and symptoms of schizophrenia for at least one year). Dr. Gooriah, the staff psychiatrist, noted that because of G.A.'s prior history of noncompliance with his medication, "should [G.A.] be discharged into the community there is a risk of his decompensation." Yet, one month later Dr. Gooriah testified at a hearing that G.A. did not satisfy the criteria for being involuntarily committed. Consequently, she found no reason why his visitations should not resume.
On November 13, 1996, the Judge signed an order restoring Level 3 privileges to G.A., thereby allowing him to restart weekend visits with his sister and home visits beginning November 15, 1996. Later that month he was arrested for possession of a controlled dangerous substance, namely marijuana in violation of N.J.S.A. 2C:35-10a(4), and possession of an alcoholic beverage in violation of N.J.S.A. 2C:29-6b. As a result, his privileges were revoked on November 30, 1996.
On February 25, 1997, the prosecutor moved for an order to reevaluate G.A.'s mental condition and to subject him to a separate evaluation by a psychiatrist selected by the prosecutor to determine whether G.A. is presently mentally ill and dangerous and thus requiring involuntary commitment. The court granted the prosecutor's request for a reevaluation of G.A.'s mental condition, but without pointing to specific statutory authority, the hearing Judge refused to acknowledge the prosecutor's power to obtain such a psychiatric examination of G.A. apart from the initial involuntary commitment proceeding.
In denying the prosecutor the right to compel a separate psychiatric examination, the hearing Judge stated that "the Court has to proceed cautiously in how much , if you will, is given to the Prosecutor's Office." Further, he expressed a desire to avoid a "battle of the experts or the hired guns" situation. Although the hearing Judge recognized the prosecutor's role in the initial proceedings, the court found that "the right to civilly commit and to have independent psychiatric examination is limited to those situations provided for by the statute." He expressed doubt that "the purpose of the statute is that at any stage to be giving the Prosecutor that right that it has initially to move for the independent evaluation examination of inmates or citizens when the patient is already at the hospital as a patient here and it's a matter of record."
On March 17, 1997, two treating psychiatrists at Greystone concluded that G.A. was a danger to himself, others and property. An order for a temporary period of commitment was then issued on March 18, 1997. After his recommitment, G.A. was diagnosed with schizophrenia, chronic paranoid type, and he was involved in an incident where he entered a restricted area and verbally threatened a nurse. Consequently, Dr. Gooriah opined that G.A. was a danger to others, to property and to himself, and as such he should be committed to Greystone until his condition stabilized. On April 8, 1997, due to G.A.'s declining mental condition, the court signed a civil commitment order involuntarily recommitting him to Greystone. The prosecutor filed a notice of appeal on April 5, 1997, as to the State's right to retain an independent psychiatric evaluation of an individual on CEPP status.
The prosecutor argues that the hearing Judge erred in concluding that the State may not order an independent psychiatric evaluation of G.A. once the civil commitment has been initiated. The prosecutor relies on N.J.S.A. 30:4-27.10 and N.J.S.A. 30:4-82.4 as support for his assertion that the State may compel an individual to submit to a psychiatric evaluation by a psychiatrist of the State's own choosing after the initial involuntary commitment. Although these statutes are silent regarding a prosecutor's authority to mandate psychiatric evaluations beyond ...