Before Judges Pressler, Landau and Arnold.
The opinion of the court was delivered by: Landau, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 1999
On appeal from Superior Court of New Jersey, Law Division, Hudson County.
The State of New Jersey appeals a Law Division order entered February 18, 1999 that dismissed with prejudice Hudson County Indictment No. 963-06-95 charging defendant Paul Moya with counts of attempted aggravated sexual assault, attempted sexual assault, aggravated criminal sexual contact, and robbery, all arising out of an incident on September 29,1994, together with counts of attempted sexual assault and criminal sexual contact alleged to have occurred in a separate incident involving another victim on October 6, 1994.
The charges were dismissed with prejudice pursuant to N.J.S.A. 2C:4-4, -5, -6 because the judge concluded that defendant would not ever be competent to stand trial. *fn1 The judge also found that defendant presented no danger, and that the passage of time since the indictments prejudiced his right to a fair trial.
Apart from contesting defendant's incompetency to stand trial, the State had requested that, in light of the gravity of the untried charges, some form of monitorship be continued for a period not specified before dismissing the charges with prejudice. While it was not formally spelled out by the assistant prosecutor, it is apparent that the State was essentially asking that there be further exploration of the issue of defendant's danger to self or society, and the possible need either for commitment or a lesser form of supervision under N.J.S.A. 2C:4-6b, before dismissing all charges with prejudice.
It is conceded that the judge conducted a competency hearing as required by N.J.S.A. 2C:4-6 and State v. Spivey, 65 N.J. 21 (1974). The State argues on appeal, however, that unduly high standards were applied in determining whether it had met the burden to establish defendant's competence by a preponderance of the evidence. The State contends that the record showed defendant "understood the role of the judge, his attorney and to a large degree, the prosecutor"; that "[h]e was able to discuss the serious charges against him" and offered an explanation, constituting a defense, to the charges in each of the criminal incidents; that he understood his right to testify or not to testify on his own behalf and expressed a reason (his epilepsy and the risk of seizure) for not doing so; that he personally questioned the voluntariness of incriminating statements given to the police respecting the incidents; and that he even expressed moral outrage at anyone who would commit such crimes. Relying on evidential support for these assertions, the State says that it met its statutory burden under N.J.S.A. 2C:4-4 to establish competence. To the extent the defendant did not articulate with more precision his understanding of a trial and the functions of the defense counsel, prosecutor, judge and jury, the State argues that the level of understanding he displayed in response to the judge's questions primarily reflected that of an unsophisticated and poorly educated layman who has had no prior contact with the criminal justice system.
Our review of the record compels us to reverse and remand. We believe that defendant's answers to the judge's questions reflected a considerable degree of comprehension, particularly the responses recorded by Dr. Simring, the only expert who specifically detailed his questions to defendant and defendant's responses. These responses were at least sufficient to warrant an effort by the judge to instruct the defendant about the meaning of the factors set forth in N.J.S.A. 2C:4-4b(2) *fn2 before concluding that he was permanently incapable of comprehending them. Moreover, our review of the record convinces us that there was insufficient evidence in the record to support the judge's conclusion that defendant posed no danger to society or to himself, absent any factual exploration into whether, competent or not, the defendant (who has reportedly confessed) did in fact attempt the two sexual assaults and commit a robbery as charged in the indictment. Finally, on the issue of prejudicial delay in bringing defendant to trial, the record is also insufficient to determine whether there were reasons to explain and excuse as non-prejudicial and within constitutional standards the four and one-half year hiatus between the alleged crimes and the incompetency determination.
The judge questioned defendant directly as well as hearing testimony from two of the three expert witnesses who tested and examined the defendant. He also had the benefit of reports from the three experts. Two, including a court-appointed psychiatrist, found defendant to be competent to stand trial. All experts concurred that defendant was mildly retarded and functionally illiterate, although having received special schooling for the educable mentally retarded. *fn3 Essentially rejecting the testimony and reports of the two experts who found defendant competent to stand trial, the judge relied "most importantly [upon] the testimony of Mr. Moya himself when he was questioned by me" and concluded that "he's not capable of fully understanding the process that he's confronting as set out in 2C:4-4."
We recognize that it is the judge and not the experts who must make the ultimate determinations as to competency and as to the likelihood of danger to self or society. See, e.g., In re D.C., 146 N.J. 31, 59 (1996). Our review of such determinations is typically, and properly, highly deferential. However, partic-ularly where crimes of violence are charged, those judicial determinations should be informed by a comprehensive factual record that provides a basis for the N.J.S.A. 2C:4-4 determination and for a N.J.S.A. 2C:4-6 conclusion that a defendant may be safely and unconditionally released.
Unfortunately, while appellate courts have noted that N.J.S.A. 2C:4-4 has replaced the generalizations of prior case law with more precise and detailed standards for determining a defendant's competency, State v. Coruzzi, 189 N.J. Super. 273, 323 (App. Div.) certif. den. 94 N.J. 531 (1983); State v. Khan, 175 N.J. Super. 72, 82-83 (App. Div. 1980), we have given relatively little guidance to trial judges as to appropriate methodology for arriving at reliable conclusions as to whether an intellectually challenged defendant meets the standards.
By contrast, in cases treating a competent defendant's waiver of counsel, the Supreme Court has set forth in considerable detail the information and explanations which should first be conveyed to a defendant to ensure an understanding of the implications and possible consequences of appearing pro se, before questioning the defendant about that understanding. See State v. Crisafi, 128 N.J. 499, 510-12 (1992) and authorities there cited.
We do not assume that prospective jurors are familiar with the roles and functions of all participants in the trial process nor with the functioning of a criminal court. In most New Jersey courthouses today, prospective jurors are shown a videotape that provides and illustrates the kind of trial related information that defendant lacked when responding to questions by the judge and to the information-based ...