On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Number 04-01-0008.
Before Judges Petrella, Parker and Yannotti.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2005
M.M. was charged with first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1); second degree aggravated assault, N.J.S.A. 2C:12-1b(1); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4). She was found not guilty by reason of insanity (NGI) on the attempted murder charge and civilly committed for a period not to exceed twenty years pursuant to N.J.S.A. 2C:4-8b(3). The remaining counts were merged into the attempted murder charge and dismissed.
At the commitment hearing, the trial judge reviewed the expert reports and found that:
[D]ue to the mental disease of schizophrenia [defendant] had a serious defect of reason such that she did not know [that] what she was doing was wrong. And in her mind she was dealing with self-preservation. Unaware that her thoughts about the victim were delusional[,] she proceeded to act as if immediate action was necessary to save herself and her father from the imagined evil coming from the victim. [The victim] had no idea why she shot him, which tells me that there was no antecedent conflict or situation to serve as motivation. On the contrary, [M.M.'s] behavior was entirely derived from her private thoughts which borne little relationship to the external reality of life at home.
In conclusion her condition would be consistent with the standard set forth in the statute 2C:4-1. So, I find . . . those reports to be credible and I find that based on them . . . the defendant is not guilty by reason of insanity pursuant to 2C:4-7. And again in that finding as far as commitment, the defendant has under gone an examination . . . and I do find that the defendant cannot be released without presenting a danger to the community or herself and I commit her to a mental health facility . . . for this purpose . . . to be treated as a person civilly committed.
At the Krol*fn1 hearing on May 7, 2004, defendant urged the court to apply the aggravating and mitigating factors, N.J.S.A. 2C:44-1a and b, in determining the length of the commitment. The judge rejected that argument, citing N.J.S.A. 2C:4-8b(3) which states in relevant part:
The defendant's continued commitment, under the law governing civil commitment, shall be established by a preponderance of the evidence, during the maximum period of imprisonment that could have been imposed, as an ordinary term of imprisonment, for any charge on which the defendant has been acquitted by reason of insanity. Expiration of that maximum period of imprisonment shall be calculated by crediting the defendant with any time spent in confinement for the charge or charges on which the defendant has been acquitted by reason of insanity.
The judge noted that the ordinary term for first degree murder is ten to twenty years with a presumptive term of fifteen years, and reasoned that N.J.S.A. 2C:4-8b(3) provided for defendant's continued commitment during the "maximum period of imprisonment that could have been imposed."
In this appeal, defendant ...