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State ex rel. N.C.

Superior Court of New Jersey, Appellate Division

March 5, 2018

STATE OF NEW JERSEY IN THE INTEREST OF N.C.

          Argued January 16, 2018

         On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket Nos. FJ-21-0126-17 and FJ-21-0127-17.

          Karl R. Keys, Deputy Public Defender, argued the cause for appellant N.C. (Joseph E. Krakora, Public Defender, attorney; Karl R. Keys and Carrolyn A. Fiorino, Assistant Deputy Public Defender, of counsel and on the brief).

          Kelly Anne Shelton, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Richard T. Burke, Warren County Prosecutor, attorney; Kelly Anne Shelton, on the brief).

          Gerard A. Hughes, Deputy Attorney General, argued the cause for respondent Department of Human Services (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Patrick Jhoo, Deputy Attorney General, on the brief).

          Before Judges Messano, Accurso and Vernoia.

          OPINION

          ACCURSO, J.A.D.

         We granted N.C. leave to appeal from the Law Division's order directing the Office of the Public Defender to obtain and pay for the competency evaluation the court determined was required before the State could proceed against him on two juvenile complaints. We now reverse and remand with instructions that the court follow the procedure specified in N.J.S.A. 2C:4-4 to -6 for determining N.C. 's fitness to proceed.

         N.C, fourteen years old, was charged in two juvenile complaints with delinquency for conduct that would have constituted first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:14-2(b), and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), if committed by an adult. The alleged victims were N.C. 's younger brother and his niece. The offenses allegedly occurred when N.C. was twelve and the victims six and five years old. Although we are not privy to the details, the Division of Child Protection and Permanency (DCPP) apparently removed N.C. from his home following the allegations of abuse. He is now in placement at Bonnie Brae.

         Following consultation with the Law Guardian appointed to represent N.C. in the DCPP matter, N.C. 's initial counsel in this case, a pool attorney appointed by the Office of the Public Defender, made a motion to have N.C. examined by the Department of Human Services (DHS) for fitness to proceed pursuant to N.J.S.A. 2C:4-5(a)(2).[1] N.C. 's counsel argued N.C. 's intellectual functioning was in the lower extreme range (composite I.Q. of 56), and he suffered from certain psychological disorders as reflected in the several reports provided in support of the motion. Counsel and the Law Guardian advised the court of their impressions of N.C. 's limited cognitive functioning based on their interactions with him and their doubts as to his ability to comprehend the juvenile proceedings.

         The assistant prosecutor declined to take a position on whether N.C. 's proofs were sufficient to raise a reasonable doubt as to his fitness to proceed or whether N.J.S.A. 2C:4-5 applied to juveniles. She argued, however, that if the court ordered the competency evaluation at the Public Defender's request, the Public Defender should pay for the evaluation. DHS was noticed of the application, and a deputy attorney general appeared on its behalf. The deputy argued the Division of Mental Health and Addiction Services in DHS "does not have psychiatrists or psychologists who are qualified to forensically evaluate children as to their competency to proceed in a court proceeding, " and that N.J.S.A. 2C:4-5 applies only to adults.

         The court found a competency evaluation was necessary but concluded it did not "have the authority to order . . . another State agency besides the Office of the Public Defender ... to pay for it." Reasoning that "the public defender's office exists for the purpose of defending adults and juveniles in the criminal justice system or the juvenile justice system who are indigent, " the court found "part [and] parcel of that is to have some [fund] availability for experts." Accordingly, it entered an order finding N.C. in need of a competency evaluation and directing the Office of the Public Defender to provide and pay for it.

         The Deputy Public Defender for Warren County substituted himself into the case and moved for reconsideration. In addition to the arguments raised by the pool attorney, the deputy public defender argued the order could work to make the Public Defender the instrument of N.C. 's undoing by forcing it to produce a report contrary to N.C. 's interests. He argued N.J.S.A. 2C:4-4 to -6 clearly apply to juveniles, and DHS is the appropriate State entity to produce the independent evaluation of competency the Legislature contemplated. He further argued the court's order effectively shifted to N.C. the burden of proving his incompetency contrary to the statutory scheme, which places the burden on the prosecution to prove N.C. has the capacity to understand the proceedings against him and to assist in his own defense before he can be tried, adjudicated delinquent or sentenced.

         The prosecutor and DHS opposed reconsideration. The prosecutor claimed the State had no burden to prove a defendant's competency under the statute until after DHS produced a report opining the defendant did not have the capacity to understand the proceedings or assist in his defense.[2]Because DHS claimed it was unwilling and unable to produce the report for a juvenile, the prosecutor observed "we are all stuck in this rabbit hole of going by the ...


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