On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-319-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Messano.
We granted the State's motion for leave to appeal from the October 10, 2007, order of the trial judge that required "the State to pay the cost of defendant's psychiatric evaluation in order to ascertain [defendant's] competency to stand trial." Because N.J.S.A. 2C:4-5 provides the exclusive method by which the court may order that a defendant be examined for purposes of determining his competency to stand trial, and because those provisions do not require the State to pay for the examination, we reverse and remand the matter for further proceedings consistent with this opinion.
The procedural history and the facts giving rise to the appeal are essentially undisputed. On May 15, 2007, defendant Ramanand Durga was charged in a warrant complaint with one count of contempt of a prior domestic violence order, N.J.S.A. 2C:29-9(b). On May 24, 2007, a second warrant complaint was issued charging him with a subsequent violation of the same statute.
On June 21 and again on June 28, 2007, hearings were scheduled on the complaints, but on both occasions they were adjourned. Subsequent proceedings, held on August 9, 2007, revealed that defendant had been admitted as an inpatient to Carrier Clinic and received treatment for what his attorney characterized at a sidebar conference with the judge as "alcoholism and this psychosis." Defense counsel advised the judge that he needed a further continuance, noting that defendant claimed to be "hearing voices," and was having "pyscho[tic] or schizophrenic events" presently in the courtroom. Defense counsel believed defendant was incompetent to stand trial on the complaints.
The judge concluded that she would order a "Richard Hall Mental Health Center evaluation," and that it would be incumbent upon defense counsel to schedule the appointment. In open court, the judge placed her instructions on the record and advised defendant of the requirement to attend the evaluation. She told him, "Your attorney is going to set up a psychiatric evaluation for you . . . . You must go. If you don't go I may find you in contempt of this Court's order . . . and that could lead to you being jailed." Defendant acknowledged the instructions.
Defendant next appeared in court on September 27, 2007, once again represented by counsel but before a different judge. Defense counsel indicated that "Richard Hall" was contacted but that it would not perform the psychiatric evaluation because it "doesn't do psych eval's." Defense counsel told the judge that the prior judge's staff had advised him to have defendant arrange for his own evaluation, but that his client "doesn't have the financial wherewithal to do it on his own." The judge then addressed defendant and told him, "You can get a psychiatric evaluation or I can lock you up and the State will pay for your psychiatric examination."*fn1
The judge then discussed future calendaring of the case, and addressed the prosecutor as follows:
Well help me out here, [prosecutor]. It seems by way of interpreting this situation, the defendant has advanced willingly or otherwise his competence to stand trial as an issue. Competence to stand trial being raised, whose obligation is it to go forward?
Does the State have the obligation to go forward and establish that he's competent to stand trial?
The prosecutor argued that defendant had not been evaluated and that an examination should be completed "so we can see if he was competent." The judge took a short recess during which time he examined "[N.J.S.A.] 2C:4-4." When the proceedings resumed, the judge inquired of defense counsel, "based upon your contact and conversation with [defendant], is there a bonafide basis to believe there is an issue in regard to his competency to stand trial?" Defense counsel responded affirmatively.
Citing N.J.S.A. 2C:4-5(a), the judge then noted that the prior judge, on her own motion, had ordered a psychiatric evaluation, though she "did not appoint a psychologist or psychiatrist ...