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State of New Jersey

October 18, 2011

STATE OF NEW JERSEY IN THE INTEREST OF J.P.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2577-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2011

Before Judges Reisner and Hayden.

This is an appeal of the February 2, 2011 order dismissing the State's juvenile delinquency complaint against ten-year-old defendant J.P. on the grounds that he was not competent to stand trial. Having considered the record on appeal and the applicable law, we affirm.

The record before us discloses that J.P. lived with his father and was under the care of a psychiatrist for behavior problems. In June 2010, A.R., his five-year-old cousin, accused J.P. of sexually penetrating her while the two children were left alone in A.R.'s home. A detective subsequently interrogated J.P. with his father present for one and one-half hours. By the end of the interrogation, J.P. admitted that the accusation was true but blamed A.R. The police then arrested J.P. and charged him with delinquent acts that if committed by an adult would have constituted first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a.

Before trial, J.P.'s attorney moved to have him declared not competent to stand trial. At the ensuing competency hearing, clinical psychologist Dr. Frank Dyer testified for the defense concerning his competency evaluation of J.P. The doctor testified that, since no specialized tests have been developed to evaluate a juvenile's competency, he determined a child's competency based on generalized psychological testing, personality testing, a review of the case history, and an interview with the child. Because J.P's primary language was Spanish, Dr. Dyer conducted the testing and evaluation in Spanish. As a result of the testing, Dr. Dyer determined that J.P. had a "very severe visual motor integration problem." The testing further showed that J.P. had a verbal IQ of below 45, a performance IQ of 68, and a full scale IQ of 51. However, there was a wide deviation between the various subtest results, which Dr. Dyer found to be consistent with autism spectrum disorder, rather than simply mental retardation. Other test results confirmed the validity of these findings, according to the doctor.

Dr. Dyer opined that to be competent a juvenile must have the capacity to function as a "psychological presence in the courtroom." In the doctor's opinion, J.P. was not competent because he was not able to cooperate and communicate intellectually with counsel . . . with accurately recalling and recounting facts.

He's not able to appreciate the gravity of his situation as a juvenile respondent facing serious criminal charges. He's really not able to understand courtroom events or to appreciate the roles of the various courtroom personnel such as the judge, his attorney, and the prosecutor.

He's deficient in all of those areas. . . .

[H]e is not equipped to perform the cognitive operations that are required to function as a genuine psychological presence in the courtroom.

Dr. Dyer could not predict whether J.P. would ever become competent to participate at trial. The doctor recommended that, in addition to getting treatment for his sexual behavior issues, J.P. receive treatment and medication targeted to address his autistic spectrum disorder related behavior. With respect to the likelihood of future competency, the doctor testified that "whether this extreme intellectual deficit particularly in the verbal sphere . . . is entirely due to the autism spectrum disorder and will remit once [J.P.] is treated properly with adequate psychiatric care and the right kind of therapy, behavioral interventions and so forth . . . remains to be seen."

The State did not present any expert testimony to prove that J.P. was competent or would become so in the future. The State presented the DVD recording of the detective's interrogation of J.P., which the court reviewed over the objection of defense counsel. In addition, the State presented Maria Diaz, J.P.'s second grade teacher, who testified that J.P.'s grades had been poor. Ms. Diaz reported that he had significant difficulty with language, both English and Spanish, and read at a first-grade level. In comparison, J.P. was better in math, although the teacher pointed out that he was repeating second grade and math at this level included concepts he had used since kindergarten. Due to his ...


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