July 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LINLY ANTOINE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-03-0447.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2011
Before Judges A. A. Rodriguez and Reisner.
Defendant Linly Antoine appeals from the May 20, 2010 Krol*fn1 order committing him to the custody of the Department of Human Services pursuant to N.J.S.A. 2C:4-8, following a bench trial at which defendant was found not guilty by reason of insanity (NGRI). We affirm.
Defendant was charged with five counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a; and one count of fourth-degree retaliation for past official action, N.J.S.A. 2C:27-5. These charges stem from the undisputed allegations that he left voicemail messages for a Superior Court judge and four court employees threatening to kill them. On October 26, 2007, defendant left a series of threatening telephone messages on the answering machines of Judge Lois Lipton, the Bergen County Criminal Case Manager, and three probation officers. One of the probation officers recognized defendant's voice because defendant's wife had been on probation.
Because it appeared that defendant's fitness to stand trial was questionable, the court ordered a psychiatric evaluation. Susie Chung, Ph.D., BCBA, conducted the court-ordered evaluation. Dr. Chung recommended inpatient hospitalization to allow a period of observation to assess competence and to facilitate psychiatric stabilization.
Defendant was committed to the Ann Klein Forensic Center for a competency evaluation. Benito Marty, M.D., a clinical psychiatrist at Ann Klein, prepared a report regarding defendant. In his report, Dr. Marty described the threatening telephone messages left by defendant.
[Defendant] left five threatening voicemail messages to the Bergen County Superior Court Judge, probation offices and the criminal division manager of the Bergen County Justice Ctr. The messages included referring to himself as the "Lord" and referring to God and "robbing God" and made threatening statements including "you better believe I will kill you and I will destroy you."
Dr. Marty opined that defendant was competent to stand trial, and was not a danger to himself or others. However, he was suffering from delusional disorder, such that he did not know the difference between right and wrong and was insane at the time of the offenses.
The State's expert, Azariah Eshkenazi, M.D., agreed that defendant was insane at the time of the offenses and was not a danger to himself or others. He opined that defendant never actually intended to kill anyone. Rather, defendant believed that he was the son of God and an architect, building the New Jerusalem. Defendant's delusions were fixed false beliefs that would not be responsive to medication. Dr. Eshkenazi opined that defendant should be found not guilty by reason of insanity and there should be no further court reviews.
Defense counsel served notice of the intent to rely on the defense of insanity, pursuant to N.J.S.A. 2C:4-1. Judge Marilyn C. Clark conducted a bench trial in October 2009, and found defendant not guilty by reason of insanity. The judge did not commit defendant, but released him on the condition that he remain in New Jersey until the next court date on November 12, 2009. The judge also ordered that he undergo another psychiatric evaluation.
However, defendant did not appear for the psychiatric evaluation or the court date. A warrant was issued for his arrest. In January 2010, defendant was arrested on the warrant in North Carolina and was extradited to New Jersey. Judge Clark ordered a new psychiatric evaluation and remanded defendant to the Passaic County jail pending the next court date.
On May 13, 2010, Judge Clark conducted a Krol hearing. During the hearing she considered the second evaluation conducted by Dr. Eshkenazi. In his April 26, 2010 report, he concluded that defendant required inpatient hospitalization and medication. In the report Dr. Eshkenazi stated:
[I]t is my opinion with a reasonable degree of medical certainty that, as a result of the delusions and as a result of the anger and hostility that he harbors, [defendant] might eventually act in a violent way.
Therefore, I do believe, and it is my opinion that, at this time, [defendant] requires inpatient hospitalization.. . . .
Although delusions are very difficult to treat, and they might not respond to the medication, an attempt to do so should be made. Keeping in mind the violent threats that [defendant] has made, the total disrespect for the court and the great deal of anger and hostility that he harbors, in addition to his delusions, that is probably the most appropriate way for treatment.
Defendant testified that, if released, he would comply with any court orders regarding treatment and was willing to take medication on a daily basis. He explained the reason that he had left New Jersey and returned to North Carolina notwithstanding the court's order that he remain in this state. In New Jersey, he had been staying at the same house as his daughter. However, his daughter's mother and step-father no longer wanted him in the house so he decided to "leave before it got worse." Defendant had no other housing available to him in New Jersey and, therefore, returned to his home in North Carolina.
The judge found that defendant was a danger to himself, others or property as a result of mental illness. The judge ordered that defendant be civilly committed, pursuant to N.J.S.A. 2C:4-8, and periodically reviewed, pursuant to Rule 4:74-7.
On appeal, defendant contends:
THE LOWER COURT ORDER MUST BE REVERSED, THE KROL STATUS TERMINATED AND DEFENDANT SHOULD BE UNCONDITIONALLY RELEASED WITHOUT FURTHER COURT ACTION SINCE THE STATE DID NOT PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT DEFENDANT IS CURRENTLY A DANGER TO HIMSELF, OTHERS OR PROPERTY AS A RESULT OF MENTAL ILLNESS. ALTERNATIVELY, THIS MATTER SHOULD BE REMANDED WITH DIRECTIONS THAT DEFENDANT BE PLACED ON OUT-PATIENT KROL STATUS.
A. The lower court order should be reversed, defendant's Krol status should be terminated and defendant should be unconditionally released without further Court action since the State failed to prove by a preponderance of the evidence that defendant is currently a danger to himself, others or property.
B. The lower court order should be reversed and the defendant should be released under supervision or under conditions where he will pose no danger to the community or to himself.
After an acquittal by reason of insanity, "[i]f the court finds that the defendant cannot be released with or without supervision or conditions without posing a danger to the community or to himself, it shall commit the defendant to a mental health facility . . . to be treated as a person civilly committed." N.J.S.A. 2C:4-8b(3). It is the State's burden to prove that defendant is a danger to himself or the community by a preponderance of the evidence. Krol, supra, 68 N.J. at 257.
A civil commitment "requires that there be a substantial risk of dangerous conduct within the reasonably foreseeable future." Id. at 260. "The risk of danger, a product of the likelihood of such conduct and the degree of harm which may ensue, must be substantial within the reasonably foreseeable future." Ibid.
Applying that standard to the record created during the Krol hearing, we are satisfied that Judge Clark's findings are based on adequate evidence in the record. R. 2:11-3(e)(1)(A). Moreover, we concur with her analysis of the governing legal principles. Accordingly, we affirm the Krol commitment substantially for the reasons expressed by Judge Clark in her May 13, 2010 oral opinion.
Defendant also contends:
THE LOWER COURT ORDER MUST BE REVERSED SINCE THE MAX OUT DATE OF 26 1/2 YEARS IS BASED ON THE ERRONEOUS ASSUMPTION THAT A CONVICTION WOULD HAVE RESULTED IN THE IMPOSITION OF CONSECUTIVE SENTENCES. THE PROPER MAX OUT DATE IS NO MORE THAN FIVE YEARS (Not Raised Below).
We reject this argument because it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We merely note that the length of the max-out period is consistent with N.J.S.A. 2C:4-8b(3). Judge Clark, after deciding that commitment is appropriate, calculated the time defendant will spend on Krol status. N.J.S.A. 2C:4-8b(3) requires "the maximum period of imprisonment that could have been imposed, as an ordinary term of imprisonment." The sentence should be determined by "taking into account usual principles of sentencing." In re Commitment of W.K., 159 N.J. 1, 6 (1999). The outer limits of this period must be limited by the operation of principles of merger and consecutive/concurrent sentencing. Ibid.
Here, merger is not a concern. Considering that the crimes involved separate conduct, committed at different times and targeting different persons, we conclude that concurrent sentences would be inappropriate. See State v. Yarbough, 100 N.J. 627, 644-45 (1985).