June 4, 2019
appeal from an interlocutory order of the Superior Court of
New Jersey, Law Division, Somerset County, Indictment No.
Henry Heinzel, Assistant Prosecutor, argued the cause for
appellant (Michael H. Robertson, Somerset County Prosecutor,
attorney; Paul Henry Heinzel, of counsel and on the briefs).
J. Russo, Deputy Public Defender, argued the cause for
respondent (Joseph E. Krakora, Public Defender, attorney;
Joseph J. Russo, on the brief).
Alexander R. Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American Civil
Liberties Union of New Jersey Foundation, attorneys;
Alexander R. Shalom and Jeanne M. Locicero, on the brief).
Judges Fisher, Suter and Enright.
State appeals the January 7, 2019 order of the trial court
that denied its request for an order to involuntarily
medicate defendant R.G. to restore him to competency to stand
trial. We affirm the trial court's order. We agree with
the trial court that the State did not satisfy the test under
Sell v. United States, 539 U.S. 166 (2003), because
the first factor is determined by consideration of
defendant's probable sentence not simply the maximum
sentence exposure for the offense charged. The trial court
also must consider the potential effect of the medication on
defendant's right to a fair trial when applying
Sell. Because the Sell test was not
satisfied, we have no occasion to determine whether our State
Constitution would afford a defendant greater protection of
individual liberty or privacy rights.
mother was attending a wedding in California when she asked
the police to check on her husband's welfare because she
had not heard from him. Defendant answered the door when the
police arrived dressed only in a blanket. The police inquired
about his father. Defendant pointed to the floor where his
father was lying. A pool of blood was near his father's
mouth. He had vomit on his face, was breathing but with
difficulty, and had a mild pulse. There were no visible signs
of trauma. Defendant told the police his father had been
laying there for about twelve to twenty-four hours. Defendant
was waiting to summon help because his father had a similar
gastrointestinal bleed in the past and recovered. Defendant
also told the police illogical things about developing
weapons for the government. Defendant's father died at
the hospital the next day of natural causes.
was charged with third-degree neglect of an elderly or
disabled person, N.J.S.A. 2C:24-8(a). He remained in jail
from mid-December 2016 until the end of May 2017, when his
bail was reduced and he was released. More than eight months
later, and following a request by his attorney, the trial
judge entered an order under N.J.S.A. 2C:4-5(a)(2) that
required defendant to take a fitness to proceed (competency)
examination. The examining psychologist recommended
conducting the examination in a hospital.
1, 2018, defendant was remanded to the Somerset County Jail
without bail and later admitted to Trenton Psychiatric
Hospital (TPH) for the competency evaluation that was
conducted in October 2018. He was found not competent to
stand trial. To our knowledge, he remains a patient at TPH.
October 2018, the State filed a motion for an order to
require defendant to be involuntarily medicated because
defendant refused to take antipsychotic medication
voluntarily. The State claimed it had an important interest
in restoring defendant to competence, that he would likely
become competent with medication and that medication was in
his best interest.
competency hearing in December 2018, Dr. Jonathan L.
Rapaport, a forensic psychologist, testified, based on his
examination, that defendant had a delusional disorder and
psychosis because he believed his father was still alive even
though he had been shown the autopsy photographs.
Defendant's mental illness was impairing his ability to
assist his attorney with a defense. Dr. Rapaport testified
defendant was not competent to stand trial.
recommended steps to restore defendant to competency:
defendant should attend a competency restoration group at TPH
to assist in understanding the legal process and take
antipsychotic medication. Dr. Rapaport opined that medication
would "help greatly" to alleviate defendant's
psychosis and "very likely" improve defendant's
mental state. Defendant was not participating in any groups
at TPH. Although defendant remained competent to decide his
own medical issues, he was refusing to take any antipsychotic
Rapaport testified the medication was a necessary treatment
for defendant and the lack of medication was preventing him
from becoming competent to stand trial. He claimed that
defendant "possibly" was a danger to himself or
others because he had become physically agitated when they
were discussing the medication issue, and because he
allegedly had a history of assault and domestic violence. Dr.
Rapaport testified that medication would help defendant's
delusions "to gradually dissipate" although there
was "no guarantee." Defendant's psychosis was
severe. Dr. Rapaport was of the view that although
defendant's participation in group therapy would be
helpful, antipsychotic medication was "necessary."
Yves George Dubois, an attending psychiatrist at TPH, also
examined defendant. He testified that defendant did not have
the mental capacity to stand trial. Defendant had a
delusional disorder with a "disorganized" thought
process and "bizarre" thinking. With this
"chronic psychosis," defendant was "losing
brain cells" that eventually could impair his memory and
affect his activities of daily living. Defendant could become
dangerous. Dr. DuBois recommended that defendant take
medications such as Haldol or Prolixin to gain competence to
proceed to trial and for his mental health. Either medication
was medically appropriate for his condition. Because Prolixin
could cause a rise in "blood pressure, weight gain [and]
diabetes," Dr. Dubois recommended prescribing Haldol.
testified that both antipsychotic medications could cause
"abnormal movement, like shaking, tremors" and
"rigidity," but there were other medications to
control that. In his opinion, the side effects from the
medication would not undermine the fairness of a trial. For
drowsiness, he suggested decreasing the dosage. He testified
the medication would not prevent defendant's rapid
reaction to events that happened on the stand. Dr. Dubois
acknowledged that Haldol could decrease defendant's
ability to express emotions, but he testified, "we have
other medication to counteract that and we can also decrease
Dubois testified that defendant was becoming more delusional
although he was not declining cognitively, meaning that
defendant could appreciate the necessity to take medication
to improve his life. He was not violent. He did not pose an
imminent danger at TPH. Because of this, Dr. Dubois could not