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In the Matter of the


August 6, 2012


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-04-0538, Case No. 10-754.

Per curiam.



Submitted July 24, 2012 -

Before Judges Lihotz and Baxter.

In July 2010, F.S. was ordered involuntarily confined to Trenton Psychiatric Hospital (TPH), following her acquittal by reason of insanity on several criminal charges. She appeals from a July 22, 2011 Law Division order that continued her involuntary civil commitment. We affirm.


F.S. was charged in a Monmouth County indictment with third-degree terroristic threats, N.J.S.A. 2C:12-3; third-degree possession of a weapon, namely a box cutter, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The charges stemmed from an incident that occurred on February 12, 2010, when F.S. was waving a box cutter in the air while walking closely behind a mother and a daughter on a Freehold sidewalk. The women stated that while brandishing the box cutter, F.S. cursed at them and threatened to "kill [them] right now." The daughter reported that F.S. grabbed her hair and pushed the point of a sharp object into her back.

At the conclusion of a July 2010 bench trial, F.S. was found not guilty by reason of insanity (NGRI), and, pursuant to State v. Krol, 68 N.J. 236 (1975), was committed to TPH. Judge Perri ordered that F.S.'s involuntary commitment status would be reviewed at a periodic review hearing on January 6, 2011. At the January 2011 hearing, after considering the testimony of F.S.'s treating psychiatrist, Dr. Yves DuBois, Judge Perri determined that F.S. remained a danger to herself and others. The judge continued F.S.'s Krol status and confinement to TPH pending a review hearing in July 2011.

At the July 14, 2011 Krol hearing that is the subject of this appeal, the State presented the testimony of F.S.'s treating physician, Carolina Diao, M.D., a board-certified psychiatrist. Dr. Diao described F.S.'s prior psychiatric history, noting that F.S. had been involuntarily committed to TPH in January 2009, for an incident that bore considerable similarity to the incident that underlies her current involuntary psychiatric commitment. In particular, in January 2009, after becoming noncompliant with her anti-psychotic medication, F.S. began hallucinating and became aggressive. She spit in the face of a man on the street whom she did not know, but thought was harassing her. F.S. reportedly threatened others on the street as well. The 2009 incident resulted in a two-week involuntary psychiatric hospitalization at TPH.

Dr. Diao explained that F.S. was currently assigned to privilege level 2, which prohibited her from leaving her locked hospital ward unless accompanied by a staff member. Dr. Diao noted that as recently as two weeks earlier, F.S. was at the lowest privilege level, and not allowed to leave the ward even with a staff member, because she had swallowed a battery on May 3, 2011. As a result, of that incident, F.S.'s treatment team "dropped" her privilege level to level 1. The doctor explained that this incident of "self-injurious behavior" resulted from F.S.'s anger at her involuntary confinement.

When asked whether F.S. continues to suffer from a mental illness, Dr. Diao answered in the affirmative, stating that F.S. presently suffers from "schizophrenia, paranoid type, chronic." The psychiatrist observed that in the "past couple of months," F.S. had been "calm [and] cooperative," and was not experiencing any hallucinations or delusions. Dr. Diao expressed concern, however, about F.S.'s very limited understanding of the dynamics of her "mental illness." The doctor opined:

[I]f she has limited [insight] or lack[s] insight [into] her mental illness, th[e]n there's a probability when she will be released from the hospital that . . . she will not take the medication[,] [and] she will decompensate and then she can be psychotic[.] [T]he symptoms that she had before will, again, appear, like the hallucinations, the aggressive behavior.

Dr. Diao also observed that F.S.'s history of abusing drugs and alcohol created an increased risk that F.S. would, if discharged, become non-compliant with the taking of her anti-psychotic medication because drugs and alcohol made F.S. "feel better."

Dr. Diao acknowledged that F.S. had not been "aggressive or violent" toward any staff members or other patients since her confinement at TPH began in August 2010. The doctor attributed F.S.'s stability to the Haldol that had been prescribed for her. When asked whether F.S. could safely be released to the community at the present time, Dr. Diao answered "[n]o." She opined that if released "today," F.S. would "be a danger to the community or to herself," explaining:

[She would present a] threat to others[.] . . . [A]lthough she's taking the medications in -- in the hospital and [has had] no aggressive behavior, . . . her lack of insight to her mental illness and [to] the Krol status and if there's no one supervising the giving of the medications, she -- she will decompensate and then she will be actively psychotic and then this can lead to her committing a crime.

On cross-examination, Dr. Diao acknowledged that some patients who are released to the community can function properly and remain stable even though their insight into their mental illness, and their understanding of the role their medication plays in their recovery, is limited. Dr. Diao also agreed that while confined to TPH during the present hospitalization, F.S. had "not demonstrated any noncompliance with her medication." She explained on direct examination, however, that a nurse is always present to ensure that F.S. takes each prescribed dose of Haldol.

F.S. did not testify or present any witnesses. At the conclusion of the July 14, 2011 Krol hearing, Judge Perri ruled that the State had satisfied its burden of proving, by a preponderance of the evidence, that F.S. remained a danger to herself or others by reason of mental illness. In concluding that F.S.'s involuntary commitment should be continued, the judge credited Dr. Diao's opinion, and stated:

[I]f [F.S.] is noncompliant with her medication, she will decompensate, she will become actively psychotic, she will be subject to hallucinations and aggressive behavior; and obviously, it is of a paramount concern to the Court where a defendant presents with command hallucinations as this defendant has had in the past.

The judge also reasoned that F.S.'s lack of insight into her mental illness created a substantial risk that if released to the community she would engage in conduct dangerous to herself or others. The judge explained:

Insight into the mental illness is one thing. I also believe that insight into the consequences of her behavior in a more general [sense] is also important. And if [appellant] does not understand that she cannot get out of Trenton Psychiatric Hospital by injuring herself, but rather through going to her programs, being compliant with her medications, that, to me, raises the court's concern about her ultimate chances of success if released into the community.

To my mind the swallowing of the battery is very desperate behavior. And someone who is that impulsive may well feel that she, well, if given the opportunity, has no need to take her medications and can do just fine on her own, maybe she knows better than everybody else, maybe she thinks that, again, engaging in . . . the abuse of alcohol or drugs is a good idea.

[T]he reason that [appellant] presently presents as a person who has not been aggressive is because she is in a restricted environment and is taking her medications. . . . I find at this time that [F.S.] shall be continued on Krol status, that the record more than amply shows that [continued commitment] is required to protect the community at large; and, also, . . . to protect the defendant given her self-injurious behavior.

The judge signed a confirming order on July 22, 2011, continuing appellant on Krol status and establishing a review date of January 12, 2012.

On appeal, F.S. argues: 1) the State failed to produce "any evidence" that she presently "suffers from any substantial disturbance of thought, mood, perception or orientation," and the State therefore failed to prove that she is mentally ill; 2) the State "failed to produce any evidence whatsoever" that F.S. presents a danger to others; and 3) "the act of ingesting a battery, albeit potentially harmful," was not shown "to be the result of a mental illness nor is the risk any longer current[.]" F.S. asserts that the order of July 22, 2011 must be reversed and that her involuntary commitment should be terminated.


"The scope of appellate review of a commitment determination is extremely narrow and should be modified only if the record reveals a clear mistake." In re D.C., 146 N.J. 31, 58 (1996).

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:4-8(b)(3). The State bears the burden of proving, by a preponderance of the evidence, that by reason of mental illness, the insanity acquitee is a present danger to himself or to the community. Krol, supra, 68 N.J. at 257. Civil commitment that results from an insanity acquittal cannot be continued unless the State demonstrates "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.

At a periodic review hearing, the reviewing court "must consider any improvement or deterioration in the [NGRI acquitee's] condition since the [last] hearing, which serves to increase or decrease the danger [the patient] would pose to himself or the community under the current level of restraints." State v. Fields, 77 N.J. 282, 301 (1978). If the State fails to present proof justifying the continuation of the currently prevailing restraints, the judge must "mold" an appropriate order. Id. at 302.

"However, even where the [patient's] condition shows marked improvement, only the most extraordinary case would justify modification in any manner other than by a gradual de-escalation of the restraints upon the [insanity acquitee's] liberty." Id. at 303 (emphasis added). The Court elaborated on the importance of a gradual approach to the Krol patient's ultimate release, commenting: "It cannot be emphasized too strongly that the relaxation of the restraints on the [patient's] liberty must proceed in gradual stages." Ibid.

The Court also cautioned trial judges that individuals who have been acquitted by reason of insanity have already demonstrated the capacity to engage in criminal behavior, and the determination of future dangerousness must, of necessity, "give substantial weight to the nature and seriousness of the crime [already] committed by defendant and its relationship to his present mental condition." Id. at 307 (emphasis added) (citation omitted). "[T]he fact that he has actually engaged in dangerous conduct otherwise criminal should weigh heavily in the court's assessment of the need for the continued imposition of restraints upon his liberty." Id. at 309.

Applying that standard to the record created during the Krol hearing, we are satisfied that Judge Perri's findings of fact are well-supported by the evidence in the record. Moreover, we concur with her analysis of the governing legal principles. Appellant's present inability to control her impulsive behavior, as evidenced by swallowing a battery only nine weeks before the hearing, supports the trial judge's finding there is a substantial risk that if released to the community, she will again engage in the dangerous behavior that led to her involuntary commitment in both 2009 and 2010. Moreover, F.S.'s inability, or unwillingness, to recognize the role that medication plays in her capacity to remain stable also creates a significant risk that if released to the community F.S. will, in the doctor's words, "decompensate" and again become aggressive to others. We are satisfied, as was Judge Perri, that appellant presently suffers from paranoid schizophrenia that creates a substantial risk that she would be dangerous to herself or others if released. Accordingly, we affirm Judge Perri's order that continues F.S. under involuntary commitment as a Krol patient.



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