On appeal from the Superior Court of New Jersey, Law Division, Union County, 89-07-1113.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Winkelstein, Fuentes and Chambers.
R.O.M. is a patient at Ancora State Hospital, having been committed after being found guilty by reason of insanity in November 1990 of murdering his mother, brother, and two others. Following an annual review of his commitment pursuant to State v. Krol, 68 N.J. 236 (1975), the trial court ordered his continued commitment but permitted "off-campus visits" subject to conditions. One of those conditions was that R.O.M. "shall wear a wristlet-type monitoring device [Global Positioning System (GPS)] which allows his location to be ascertained." Both appellant, and the State, which was represented at the Krol hearing by the State Attorney General, challenged that condition. They asserted that Ancora does not possess GPS equipment, and even if it did, R.O.M. does not pose a danger to the community or a flight risk. The court rejected those arguments.
On appeal, appellant contends the court was without legal authority to order the use of a monitoring bracelet, and further claims that his right to due process was violated by the challenged condition. The Union County Prosecutor, representing the State on appeal, argues that the trial court was within its discretion to order appellant to wear a wristlet during off-campus visits.*fn1
We agree with appellant that the court does not have the legal authority to impose a condition that would require the State to purchase equipment that it currently does not possess. Consequently, we reverse that portion of the trial court's order that requires appellant, during all off-campus visits, to wear a wristlet-type monitoring device, and remand for further proceedings consistent with this opinion.
In a letter to the court dated December 28, 2006, in anticipation of an upcoming annual review hearing, Dr. Benjamin Liberatore, a clinical psychiatrist at Ancora who had been treating appellant since September 2003, stated that R.O.M. has had minimal off-grounds visits, but several successful on-grounds overnight visits without staff supervision. Dr. Liberatore did not consider R.O.M. to be an escape risk. He opined that off-grounds trips with a non-staff escort would be beneficial to R.O.M.'s treatment.
The court conducted an annual review of appellant's institutionalization on January 9, 2007. During that proceeding, the court took testimony from both Dr. Liberatore and appellant's therapist, Dr. Margo Morgan, a clinical psychologist; reviewed Dr. Liberatore's July 27, 2006 report, as well as a number of other submissions bearing upon appellant's visitation activities; examined progress notes relating to appellant's individual therapy sessions; and reviewed Dr. Morgan's April 25, 2006 psychological assessment of appellant. The court entered an order on April 10, 2007, permitting off-campus visits within five miles of the Ancora campus, subject to sixteen conditions. Appellant objects to the sixteenth condition, which states: "During all off-campus visits with a visitor, [R.O.M.] shall wear a wristlet-type monitoring device which allows his location to be ascertained."
Following the issuance of the order, the State Attorney General's office filed a motion to, among other things, remove the requirement that R.O.M. wear a monitoring GPS bracelet during off-campus visitations. The Deputy Attorney General (DAG) represented to the trial court that Ancora did not have GPS equipment - neither the bracelet nor the monitoring equipment; that the equipment was "a tremendous expense," and the statute that authorized that type of equipment was limited to monitoring sexually violent predators. The DAG also represented that R.O.M.'s medical treatment team did not believe the equipment was necessary, as the team did not consider R.O.M. either a flight or danger risk.
The court rejected the State's arguments. The following colloquy ensued between the court and the DAG:
[THE COURT:] I don't see any compelling reason not to order it, especially in light of most recent events. You have nothing to tell me, that the cost is too prohibitive, that there's no way that they can possibly get this, there's no way they can possibly borrow this equipment, nothing.
[DAG]: Judge, if I might ask if we can have a court order that obligates the Department of Corrections to comply with the Department of Human Services or the local Parole Board. They did make ...