January 16, 2018
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.
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).
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
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).
Judges Messano, Accurso and Vernoia.
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
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.
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). 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.
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.
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.
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.
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.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 ...