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State of New Jersey


October 18, 2011


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

Per curiam.



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 considerable learning problems, his teachers had recommended J.P. for evaluation for special education services, first when he was in kindergarten and again last year in Ms. Diaz's class.

At the end of the hearing, the trial judge ruled that J.P. was not competent to stand trial. The judge credited Dr. Dyer's testimony and found that the State's witnesses did not support its argument that J.P. was competent. She found that the recording of the detective's interrogation confirmed Dr. Dyer's testimony that J.P. was functioning at the level of a six or seven-year-old child. The judge also found that the teacher did not "contradict [Dr. Dyer] in any meaningful way." The judge concluded,

So what we're left with is a 10 year old boy with a full scale IQ of [51] . . . in the second grade at the time he was questioned and charged, who I do not believe can provide any meaningful assistance to his lawyer. Nor can he fully comprehend what is going on here. . . . . This child is not competent to understand the nature of the charges against him or to assist his lawyer in defending him. Knowing after somebody has told you repeatedly that you've done something wrong, having an inkling that you've done something wrong and being uncomfortable about [it] is perfectly consistent with his age level and his emotional development and his IQ, which Dr.

Dyer places him in the mild mentally retarded range.

Therefore, the judge granted the defense motion to dismiss the complaint as J.P. was not competent to stand trial. This appeal followed.

On appeal, the State contends:


"The test for competency to stand trial arises from basic concepts of due process." State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007); State v. M.J.L., 369 N.J. Super. 532, 547 (App. Div. 2004). When a defendant is tried while incompetent to stand trial, that defendant has been deprived of his due process right to a fair trial. State v. Cecil, 260 N.J. Super. 475, 480 (App. Div. 1992). We have previously held that the State has the burden of proving competence to stand trial by a preponderance of the evidence. State v. Lambert, 275 N.J. Super. 125, 129 (App. Div. 1994). At a minimum, the State must show that the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him. State v. Purnell, supra, 394 N.J. Super at 47 (citing Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L.Ed. 2d 824, 825 (1960)).

The test for competency to stand trial in New Jersey is codified in N.J.S.A. 2C:4-4, which provides in part: "No person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures." N.J.S.A. 2C:4-4a. The proofs must establish that the defendant understands his presence in a courtroom facing criminal charges; the roles of the judge, prosecutor and defense attorney; his rights and the consequences of waiver of the same; and his ability to participate in his own defense. N.J.S.A. 2C:4-4b.

Our review of a trial court's competency determination must be "'typically, and properly, highly deferential.'" State v. M.J.L., supra, 369 N.J. Super. at 548 (quoting State v. Moya, 329 N.J. Super. 499, 506 (App. Div.) certif. denied, 165 N.J. 529 (2000)). We do not review the factual record to determine how we would decide the matter if we were a court of first instance. State v. Johnson, 42 N.J. 146, 161 (1964). Moreover, a trial court's determination on the subject of competency will be sustained if there is sufficient supporting evidence in the record. State v. Purnell, supra, 394 N.J. Super. at 50.

We are satisfied that the trial judge's finding that J.P. was not competent to stand trial is adequately supported by the record. We agree with the judge's implicit determination that the State did not meet its burden of proving that J.P. was competent. Here, the trial judge relied heavily on the uncontradicted expert testimony of Dr. Dyer. In addition, she also found that, rather than support the State's position, the testimony of J.P.'s former teacher and the recording of the interrogation of J.P. corroborated Dr. Dyer's opinion. Contrary to the State's assertion, the judge did not rely solely, or even principally, on J.P.'s chronological age for her determination. Rather, she determined, based upon all the evidence before her, that J.P. would not be able to comprehend the process and aid in his own defense. We concur.



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