                                   RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-1613-18T2

STATE OF NEW JERSEY
IN THE INTEREST OF J.C.,

     a Juvenile.
___________________________

                 Submitted May 16, 2019 – Decided June 12, 2019

                 Before Judges Simonelli and Firko.

                 On appeal from Superior Court of New Jersey,
                 Chancery Division, Family Part, Cumberland County,
                 Docket No. FJ-06-0057-18.

                 Jennifer    Webb-McRae,        Cumberland      County
                 Prosecutor, attorney for appellant State of New Jersey
                 (Deirdre M. MacFeeters, Assistant Prosecutor, of
                 counsel and on the briefs).

                 Joseph E. Krakora, Public Defender, attorney for
                 respondent J.C. (John W. Douard, Assistant Deputy
                 Public Defender, of counsel and on the brief).

PER CURIAM

       J.C., a juvenile, was charged with one count of first-degree sexual assault

under N.J.S.A. 2C:14-2(a)(1) based upon allegations that he anally penetrated
his younger brother. The trial judge ordered a competency evaluation of J.C.

pursuant to N.J.S.A. 2C:4-5.       Two reports were provided by a licensed

psychologist, and J.C. moved to dismiss the complaint based upon lack of mental

capacity to proceed. Following a competency hearing, the trial judge dismissed

the charges against J.C., finding he was incompetent to stand trial. The State

appeals the order dismissing the charges against J.C., arguing the trial judge did

not follow proper competency procedures and failed to make findings as to

whether J.C. is a danger to himself and others. For the following reasons, we

reverse and remand.

                                        I.

      We derive the following facts from the record. On April 12, 2017, Officer

Joseph Cooper of the Vineland Police Department was dispatched to an

elementary school to investigate a reported suspicious circumstance. Upon

arrival, the principal advised Cooper that a student, eight-year-old E.Z., told her

his brother, twelve-year-old J.C., had "humped" him that morning. E.Z. told the

principal J.C. was clothed during the incident but he had removed E.Z.'s clothes.

After leaving the school, Cooper spoke to the children's mother who reported

observing J.C. "jumping away from" E.Z. that morning. She also mentioned that

after questioning her sons about what they were doing, E.Z. told her J.C. was


                                                                           A-1613-18T2
                                        2
"humping" him. E.Z. later told her J.C. had "pulled down his pants and tried to

put it in his butt."

      After speaking with the mother, Cooper contacted the Cumberland County

Prosecutor's Office and the children, along with their mother, were transported

to the prosecutor's office for questioning. A detective interviewed E.Z., and he

disclosed that J.C. "held him down by his arms and legs and 'humped' him [that]

morning[,]" while E.Z. was lying naked on his stomach and J.C. was clothed.

E.Z. stated J.C. "put his penis on his body" and E.Z. could not tell him to stop

because J.C. had covered E.Z.'s mouth with his hand. E.Z. also reported other

acts of sexual contact with J.C. and explained the incidents occurred while his

mother was asleep in another bedroom. E.Z. stated J.C. had inserted his penis

into E.Z.'s mouth on multiple occasions, and inside his buttocks on April 11,

2017, and on April 12, 2017, the date of the interview.

      J.C. was also interviewed.     During his interview, J.C. admitted to

"humping" E.Z. and putting his penis in E.Z.'s mouth earlier that morning, and

he "admitted that he did stick his penis inside of [E.Z's] buttocks on Monday,

April 10[], 2017." He also admitted to two incidents of anal sexual contact, and

one incident of oral sexual contact with E.Z. After the interview was concluded,

J.C. told his mother "he didn’t want to live anymore and advised that he wanted


                                                                        A-1613-18T2
                                       3
to hurt himself." The detective called 911 as a result of this disclosure, and J.C.

was hospitalized for crisis intervention, evaluation, and treatment.

      On July 21, 2017, J.C. was charged with one count of first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), as a result of the allegation

that he anally penetrated E.Z. on April 11, 2017. On January 29, 2018, a prior

judge ordered the Division of Child Protection and Permanency (Division) to

provide a competency evaluation of J.C. pursuant to N.J.S.A. 2C:4-5. On March

27, 2018, Richard T. Barr, Ed.D. conducted an intellectual evaluation of J.C.,

and provided a written report dated March 31, 2018.

      On April 3, 2018, J.C.'s counsel moved to dismiss the juvenile complaint

based on Barr's report. The prior judge ruled J.C. "lacked the fitness to proceed

at [that] time," and she inactivated the juvenile complaint for three months. On

April 20, 2018, the State filed a motion to reconsider the judge's April 3, 2018

ruling and for leave to amend the order to schedule a competency hearing for

J.C. Following oral argument on May 29 and 30, 2018, the judge denied the

State's motion without prejudice, pending receipt of a second report from Barr.

      On May 31, 2018, Barr conducted a second psychological-intellectual

evaluation of J.C. and issued a supplemental report. On September 21, 2018,




                                                                           A-1613-18T2
                                        4
defense counsel filed a motion to dismiss the juvenile complaint based on J.C.'s

lack of mental competence to proceed under N.J.S.A. 2C:4-4.

      The trial judge held a competency hearing in connection with the motion

on November 15, 2018. At the hearing, the trial judge qualified Barr as an expert

witness in the field of psychology, and Barr opined as to J.C.'s competency to

stand trial. At the conclusion of the hearing, the trial judge granted the motion,

dismissed the charges against J.C. with prejudice pursuant to N.J.S.A. 2C:4-

6(c), and granted the State's request for a stay pending appeal.

      On appeal, the State argues:

            I.     THE TRIAL COURT ERRED IN FINDING
                   THAT DR. BARR WAS QUALIFIED TO GIVE
                   AN EXPERT OPINION OF THE JUVENILE'S
                   COMPETENCY TO STAND TRIAL.

            II.    THE TRIAL COURT DID NOT HAVE
                   SUFFICIENT EVIDENCE TO MAKE A
                   DETERMINATION AS TO THE JUVENILE'S
                   COMPETENCY TO STAND TRIAL.

                   A.    Dr. Barr Did Not Complete a Competency
                         Evaluation of the Juvenile.

                   B.    The Trial Court Erred by Basing Its Ruling
                         on Dr. Barr's Net Opinion.

            III.   THE TRIAL COURT ERRED IN DISMISSING
                   THE JUVENILE'S CHARGES WITHOUT
                   HOLDING THE CHARGES IN ABEYANCE.
                   (Not Raised Below).

                                                                          A-1613-18T2
                                        5
             IV.   THE TRIAL COURT ERRED IN DISMISSING
                   THE   JUVENILE'S   CHARGES     WITH
                   PREJUDICE   AND    WITHOUT     ANY
                   CONDITIONS WITHOUT COMPLETING A
                   DETERMINATION OF THE JUVENILE'S
                   DANGEROUSNESS.

      The State argues it is not requesting that J.C. be deemed competent to

stand trial, but it did not stipulate to J.C.'s lack of competence to stand trial. The

State also raises concerns about competency procedures going forward and

requiring appropriate procedures to be followed. We do not provide advisory

opinions. "The notion that a court of appeals willy-nilly can decide issues

unnecessary to the outcome of the case results in the wholesale issuance of

advisory opinions, a practice our judicial decision-making system categorically

rejects." State v. Rose, 206 N.J. 141, 189 (2011); see De Vesa v. Dorsey, 134

N.J. 420, 428 (1993) (recognizing it is firmly established that controversies

which have become moot or academic prior to judicial resolution ordinarily will

be dismissed); see also Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J. Super.

295, 301 (App. Div. 2005) (noting that while the New Jersey Constitution does

not confine the exercise of judicial power to actual cases and controversies, "it

is well settled that [courts] will not render advisory opinions or function in the




                                                                              A-1613-18T2
                                          6
abstract"). Since the State's position is equivocal, we will address the issues

raised.

                                        II.

      "We allow substantial deference to the trial court when it determines

whether to qualify a proposed expert. A court's witness-qualification decision

is subject to essentially an [abuse of discretion] standard of review and will only

be reversed for 'manifest error and injustice.'" State v. Jenewicz, 193 N.J. 440,

455 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)). Similarly, "our

role in reviewing the decisions of a trial judge respecting competence [is]

'typically, and properly, highly deferential.'" State v. M.J.K., 369 N.J. Super.

532, 548 (App. Div. 2004) (quoting State v. Moya, 329 N.J. Super. 499, 506

(App. Div. 2000)).

      An "abuse of discretion only arises on demonstration of 'manifest error or

injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting Torres, 183 N.J.

at 572), and occurs when the trial judge's "decision [was] made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008)

(alteration in original) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561,

571 (2002)).


                                                                           A-1613-18T2
                                        7
      At the November 15, 2018 competency hearing, the trial judge qualified

Barr as an expert in psychology, and noted he lacked expertise in respect of

statutes pertaining to competency to stand trial but he had "a long education and

years of experience in the field of psychology." The trial judge found:

            I do recognize [Barr] as an expert in the field of
            psychology, and clearly . . . questions can be asked of
            him and challenges can be made to him . . . that he is
            not a forensic psychologist or that he does not have
            sufficient expertise in the field.           [Those] are
            determinations that this [c]ourt has to make. This
            [c]ourt has to apply the statutory standards after
            listening to the testimony and evidence presented to me,
            and . . . has to decide whether or not this particular
            doctor has sufficient expertise in the field of knowledge
            that the [c]ourt has to make a determination of. But, I
            do find that with the education and experience that []
            Barr has, that he is an expert in the field of psychology
            as of this point, and I will recognize him as that, and
            allow him to testify as that.

      The State argues that the trial judge's decision to qualify Barr as an expert

on competency constituted "'manifest error' which, if allowed to stand, could

result in great injustice to the State and the victims in this case." J.C. counters

that Barr's testimony satisfied the requirements for expert testimony, and he was

qualified to opine as to J.C.'s mental capacity. The State did not proffer any

expert testimony at the hearing.




                                                                           A-1613-18T2
                                        8
      "Expert testimony is needed where the factfinder would not be expected

to have sufficient knowledge or experience and would have to speculate without

the aid of expert testimony." M.J.K., 369 N.J. Super. at 549 (quoting Torres v.

Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001)). The admissibility

of expert testimony is governed by Rule 702, which provides: "If scientific,

technical or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify thereto in the

form of an opinion or otherwise." N.J.R.E. 702. Our courts have held that Rule

702 sets forth three basic requirements for the admission of expert testimony:

            (1) the intended testimony must concern a subject
            matter that is beyond the ken of the average juror; (2)
            the field testified to must be at a state of the art that an
            expert's testimony could be sufficiently reliable; and (3)
            the witness must have sufficient expertise to offer the
            intended testimony.

            [Torres, 183 N.J. at 567-68 (quoting State v. Berry, 140
            N.J. 280, 290 (1995)).]

      Only the third requirement is at issue here. "Prior to the admission of

expert testimony, the trial court should conduct a hearing under [Rule 104]

concerning the admissibility of the proposed expert testimony." Id. at 567. "In

a Rule 104 hearing . . . the party offering the proposed expert should elicit the


                                                                            A-1613-18T2
                                         9
qualifications of the expert and the specific content of the proffered testimony.

After cross-examination by the opposing party, the court should render a

decision on the admissibility of the proffered testimony." Ibid. "In terms of

qualifications, an expert 'must "be suitably qualified and possessed of sufficient

specialized knowledge to be able to express [an expert opinion] and to expl ain

the basis of that opinion."'" Agha v. Feiner, 198 N.J. 50, 62 (2009) (alteration

in original) (quoting State v. Moore, 122 N.J. 420, 458-59 (1991)). "In respect

of [this requirement] . . . our trial courts take a liberal approach when assessing

a person's qualifications." Jenewicz, 193 N.J. at 454. Thus, "[t]he expert may

be qualified on the basis of his experience, even when it is limited." Torres, 183

N.J. at 572.

      At the Rule 104 hearing, Barr testified he is a licensed psychologist in

New Jersey; he has evaluated over one hundred juveniles for the Division; and,

based upon his experience, education, and qualifications, he can determine

whether or not a juvenile is competent to stand trial.

      On cross-examination, Barr conceded he is not a forensic psychologist and

is unfamiliar with the legal standards for competency to stand trial in this State,

and the standards applied by psychologists when preparing an evaluation

relative to competency to stand trial. Nonetheless, he confirmed his expertise


                                                                           A-1613-18T2
                                       10
qualified him to provide the court with an opinion as to J.C.'s competence to

stand trial.

       The State relies on our opinion in M.J.K. to support its argument that Barr

was not qualified to provide expert testimony as to J.C.'s competence to stand

trial. In M.J.K., we concluded the trial judge erred by placing "great weight" on

an expert's opinion despite "the fact that [the expert's] experience in evaluating

mentally retarded individuals like defendant was minimal." 369 N.J. Super. at

550.

       In M.J.K., we reversed the trial judge's conclusion that the defendant was

competent to stand trial, reasoning that the expert testimony on which the court

relied was "fundamentally flawed." Id. at 548-49. However, in contrast to the

State's position in this matter, the court did not find that the expert in M.J.K.

was unqualified to provide expert testimony. On the contrary, the court noted:

               We do not intend to imply that the judge should have
               simply counted the experts on each side of the issue in
               some sort of a "majority rules" analysis. Nor do we
               intend to imply that [the expert] is not, in general,
               qualified to determine competence to stand trial. We
               do conclude, however, that given the particular deficits
               of this defendant, [the expert's] ability to accurately
               evaluate [defendant's] competence, when compared
               with the experience and credentials of the other three
               experts, was lacking.

               [Id. at 551 (emphasis added).]

                                                                          A-1613-18T2
                                         11
Here, we agree with the State that Barr lacked the necessary expertise to address

the highly specialized subject of J.C.'s incompetency warranting reversal.

      Here, the trial judge found J.C. was incompetent to stand trial, relying on

Barr's testimony that J.C. is very distractible, his behavior is consistent with the

description in his Individualized Education Plan (IEP),1 and Barr encountered

difficulty in administering tests to J.C. The trial judge found:

            [Barr] does not . . . believe that [J.C.] has the ability to
            understand consequences -- that his ability to
            understand consequences is severely limited. He does
            not have a capacity to make decisions for himself. He
            does not appreciate consequences in the opinion of []
            Barr. He has stated [J.C.] can[]not give current basic
            information as to his life that would pertain to his own
            safety. He can[]not accurately assess direction in his
            life or consequences.

The trial judge concluded "I do not believe [J.C.] has an adequate ability or any

ability literally to participate in a presentation of his own defense."




1
  In its reply brief, the State argues the IEP should not be considered on appeal
because it was not admitted into evidence. We cannot consider documents not
presented to the trial judge. N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 278 (2007). Because Barr considered the IEP in his reports and
testified about it at the competency hearing, we incorporate the IEP into the
record.
                                                                            A-1613-18T2
                                        12
                                        III.

      The State first argues the trial judge should not have relied on Barr's

testimony because Barr did not complete a competency evaluation of J.C.

Evaluations of a defendant's competency to stand trial are governed by N.J.S.A.

2C:4-5, which provides that "[w]henever there is reason to doubt the defendant's

fitness to proceed, the court may on motion by the prosecutor, the defendant or

on its own motion, appoint at least one qualified psychiatrist or licensed

psychologist to examine and report upon the mental condition of the defendant."

N.J.S.A. 2C:4-5(a). The statute further provides:

            The report of the examination shall include at least the
            following: (1) a description of the nature of the
            examination; (2) a diagnosis of the mental condition of
            the defendant; (3) an opinion as to the defendant's
            capacity to understand the proceedings against him and
            to assist in his own defense.

            [N.J.S.A. 2C:4-5(b).]

"The standard report form for a competency evaluation requires the examiner to

assess the criteria for competence to stand trial as set forth in N.J.S.A. 2C:4 -4."

Purnell, 394 N.J. Super. at 39.

      Barr conducted two intellectual evaluations of J.C., and issued two

reports. In his first report, dated March 31, 2018, Barr described the nature of

the evaluation, as required by N.J.S.A. 2C:4-5(b)(1), reviewed J.C.'s IEP, and

                                                                            A-1613-18T2
                                        13
administered the Bender Gestalt test and the Wechsler Abbreviated Scales of

Intelligence. The first report noted J.C. was "very distractible" during his

evaluation, "he only superficially discussed important facets of his life[,]" and

he "was not able to provide basic information such as addresses." Based on his

evaluation, Barr concluded:

            The results of this [i]ntellectual [e]valuation
            underscored the distinct limits of [J.C.'s] capacity to
            make accurate judgments or report salient aspects of his
            life. For sample, if [J.C.] were to become lost or
            wander away from the group home, it is reasonably
            unlikely that he could provide needed information to
            police as to how to contact important persons in his life.

Although Barr stated J.C.'s IEP included a classification of "Mild Intellectual

Disability" and listed his prescription medications, Barr's report did not set forth

an independent diagnosis of J.C.'s mental condition, and did not express an

opinion as to J.C.'s "capacity to understand the proceedings against him and to

assist in his own defense," as required by N.J.S.A. 2C:4-5(b)(3).

      Barr's second report, dated June 6, 2018, similarly included the nature of

the evaluation, noting J.C. was referred for a psychological-intellectual

evaluation by his caseworker. In his second report, Barr stated, "[t]he purpose

of this [p]sychological-[i]ntellectual [e]valuation was to provide information

regarding personality and intellectual functioning, derive an understanding as to


                                                                            A-1613-18T2
                                        14
[J.C.'s] grasp of the gravity of the situation confronting him, and outline

potential treatment recommendations." Barr opined that J.C.'s "attention span

remained shifting" and concluded:

            With regard to the serious legal problems confronting
            him, [J.C.] does not appreciate its gravity. Over two
            interviews, [J.C.] expressed concern about ending a
            session with disinterest, concern about eating, and
            interest in toys appropriate for someone half his age.
            [J.C.] does not grasp the concept of consequences,
            which did not impact his present behavior over the
            course of two interview sessions and attempts at formal
            testing.

Like Barr's first report, the second report did not include an independent

diagnosis or an opinion as to J.C.'s capacity to understand the proceedings

against him and assist in his own defense. 2 The report also did not assess the

criteria listed in N.J.S.A. 2C:4-4, although it did note that J.C. had a "cognitive

incapacity to grasp the gravity of the consequences confronting him."

      At the competency hearing, Barr testified that neither of his evaluations

of J.C. were evaluations for competency to stand trial and "at no point in either

of [his reports] did [he] give an opinion about competency to stand trial[.]"

Instead, Barr admitted his evaluations were "conducted to derive an


2
  Defendant argues Barr's reports provided an opinion as to J.C.'s capacity to
assist in his own defense. Our review of the record reveals no such opinion is
expressed in either report.
                                                                           A-1613-18T2
                                       15
understanding of . . . [J.C.'s] intellectual functioning, [and] an understanding of

his capacity to understand the gravity of the situation confronting him," and to

offer potential treatment recommendations.          He testified that the results

indicated "we're dealing with someone who is very limited here, and [whose]

understanding of consequences is also limited."

       As to the issue of J.C.'s competency to stand trial, Barr testified that J.C.

would not "be able to comprehend the information that -- is going back and forth

during . . . [at] a hearing or a trial"; and "would not be able to . . . work with

[defense counsel] or answer . . . questions or understand the gravity of it."

Although Barr addressed the issue of J.C.'s ability to participate in an adequate

presentation of his defense, see N.J.S.A. 2C:4-4(g), Barr did not address any of

the other factors enumerated in N.J.S.A. 2C:4-4. Thus, as argued by the State,

"[i]t is evident in Barr's description of the purpose of his evaluation, as well as

in his failure to assess any of the relevant competency factors, that Barr did not

complete an evaluation in order to determine J.C.'s competency to stand trial."

We conclude Barr's evaluations did not meet the standards for a competency

evaluation under N.J.S.A. 2C:4-4 and N.J.S.A. 2C:4-5, warranting reversal.3




3
    The parties may agree to stipulate to J.C.'s incompetency on remand.
                                                                            A-1613-18T2
                                        16
                                      IV.

      The State next argues that due to Barr's admitted lack of knowledge and

experience in the area of competency to stand trial, and because he did not

perform a competency evaluation for J.C., his testimony and conclusions

constitute a net opinion. Defense counsel counters that Barr's conclusions were

not a net opinion because they were supported factually by his interviews with

J.C., and his review of the IEP.

      Pursuant to Rule 703, "an expert's opinion [must] be based on facts, data,

or another expert's opinion, either perceived by or made known to the expert, at

or before trial." State v. McNeil, 405 N.J. Super. 39, 49 (App. Div. 2009)

(alteration in original) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401

(App. Div. 2002)). "The corollary of that rule is the net opinion rule, which

forbids the admission into evidence of an expert's conclusions that are not

supported by factual evidence or other data." State v. Townsend, 186 N.J. 473,

494 (2006). "Under the 'net opinion' rule, an opinion lacking in such foundation

and consisting of bare conclusions unsupported by factual evidence is

inadmissible." McNeil, 405 N.J. Super. at 49 (quoting Rosenberg, 352 N.J.

Super. at 401). Thus, "[t]he rule requires the expert 'to give the why and




                                                                         A-1613-18T2
                                      17
wherefore' of his or her opinion, rather than a mere conclusion." Id. at 49-50

(quoting Rosenberg, 352 N.J. Super. at 401).

      Barr opined J.C. was "very limited"; "he did not appreciate consequences,

[and] couldn’t give basic information about his life, which would p ertain to his

own safety." Barr explained "[J.C.] lacked an appreciation for the gravity of the

circumstances" and had "no conception of consequences due to his intellectual

limitations." Saliently, J.C.'s score from the Wechsler Abbreviated Scales of

Intelligence test "yielded an IQ in the [fifty-five to sixty] range," which

"reflected functioning in the lower 2.5% of the population[,]" and "[d]uring his

two interviews, attempts to discuss consequences with [J.C.] were met with his

concerns about playing, leaving the office, and eating." Defense counsel argues

Barr's objective, empirical testimony as to J.C., coupled with his interviews,

provided "the why and wherefore" of his conclusions, but Barr lacks the

expertise to opine as to J.C.'s competence to stand trial making this argu ment

irrelevant to our conclusion.

                                        V.

      The State next argues the trial judge had insufficient evidence to

determine J.C.'s competency to stand trial. In Purnell, we reversed a trial court's

competency determination concluding "the evidence at the competency hearing


                                                                           A-1613-18T2
                                       18
did not support the finding that the State proved defendant's competence to stand

trial." 394 N.J Super. at 33. Here, the State further claims the trial judge failed

to make any substantive findings as to the competency factors set forth in

N.J.S.A. 2C:4-4(b)(2)(a) to (d).     Defense counsel contends the trial judge

properly considered Barr's reports and testimony, as well as defense counsel's

certification concerning J.C.'s incompetence, and the trial judge was not

required to make findings under N.J.S.A. 2C:4-4(b)(2)(a) to (d) regarding

whether J.C. is "factually competent." We disagree.

      Despite Barr's failure to conduct a competency evaluation and address the

factors enumerated in N.J.S.A. 2C:4-4, the trial judge relied on Barr's opinions

in finding that J.C. was incompetent to stand trial and dismissing the complaint

with prejudice. After making findings as to the N.J.S.A. 2C:4-4(b)(2) factors,

the trial judge concluded J.C. "does not have the mental capacity to appreciate .

. . his presence in relation to time, place, and things[,]" N.J.S.A. 2C:4-4(b)(1);

and his "elementary mental processes . . . are such that he can[]not comprehend

what he is alleged to have done, nor what he . . . would have to do in order to

assist in his defense," N.J.S.A. 2C:4-4(b)(2)(g). As to N.J.S.A. 2C:4-4(b)(2)(f),

the trial judge noted this was a non-jury case, but nevertheless, he did not find

J.C. "would comprehend the consequences of a guilty plea or that he is able to


                                                                           A-1613-18T2
                                       19
knowingly, intelligently or voluntarily waive those rights[.]" The trial judge

also found J.C. cannot "be expected to tell to the best of his mental ability the

facts surrounding him at the time and place where the alleged violation was

committed if he chooses to testify and understands the right to testify[,]"

N.J.S.A. 2C:4-4(b)(2)(e), and defense counsel "does not believe that [J.C.]

meets that criteria."

      Although the trial judge found that N.J.S.A. 2C:4-4(b)(2)(e) to (f)

supported a finding of incompetency to stand trial, he stated he could not find

J.C. does not understand he is in a court of law, N.J.S.A. 2C:4-4(b)(2)(a); there

is a judge on the bench, N.J.S.A. 2C:4-4(b)(2)(b); there is a prosecutor present

who will try to convict him of a criminal charge, N.J.S.A. 2C:4-4(b)(2)(c); and

he has a lawyer who will undertake a defense for him, N.J.S.A. 2C:4-4(b)(2)(d).

The judge nevertheless concluded J.C. was not competent to stand trial.

      It is undisputed that "a defendant's attorney's representations concerning

the competence of his client is a factor that must be considered" in evaluating a

defendant's competency to stand trial. State v. Lambert, 275 N.J. Super. 125,

129 (App. Div. 1994). Here, defense counsel provided a certification to the trial

judge stating he met with J.C. several times and "ha[s] had difficulty

communicating with him and discussing the case with him." Defense counsel


                                                                          A-1613-18T2
                                      20
certified: "My concern is that J.C. cannot decide whether to admit to the offense

charged or go to trial and if the case goes to trial that he will be able to follow

the trial and process the information that a trial would bring forth."

      Although the trial judge properly relied on the certification, he did so only

as to the factor enumerated in N.J.S.A. 2C:4-4(b)(2)(e), addressing whether J.C.

"will be expected to tell to the best of his mental ability the facts surrounding

him at the time and place where the alleged violation was committed if he

chooses to testify and understands the right not to testify." The balance of the

trial judge's findings were made based on Barr's conclusions, and the judge's

observations of J.C. during the hearing. 4

      Moreover, Barr testified he was unfamiliar with the legal standard for

determining competency to stand trial and he was unaware of the standards to

be followed by a psychologist when preparing an evaluation of competency to

stand trial. Barr confirmed at the hearing that he did not apply the requisite

standards in his evaluation of J.C.:

            Q     Right. What standards must a psychologist
            follow when preparing a competency to stand trial
            evaluation?

            A      I do not know.

4
  The trial judge noted his observations of J.C. during the hearing, but J.C. did
not testify.
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                                       21
             Q     You do not know. So, because you don't know
             those statutory requirements . . . you don't apply them
             to your evaluation; is that correct?

             A     I -- not if I don’t know them, then I couldn’t apply
             them.

Barr clarified that neither of his evaluations were evaluations for competency to

stand trial and the purpose of his evaluations was not to determine competency

to stand trial.5

      "It is axiomatic that an expert's opinion is only as strong as the facts on

which it rests." M.J.K., 369 N.J. Super. at 550. Here, Barr's findings were

limited to J.C.'s intellectual capacity generally, his understanding (or lack

thereof) of consequences, his distractibility, and his shifting attention span. The

trial judge nevertheless found Barr's opinions supported a conclusion that J.C.

does not have the mental capacity to appreciate his presence in relation to time,

place and things; he cannot comprehend the consequences of a guilty plea; and

he does not have the mental capacity to assist in his defense.

      "The test for competence to stand trial arises from our basic concepts of

due process." Id. at 547. "As the United States Supreme Court has held, a


5
   The defense argues Dr. Barr was "aware of the context of his evaluation of
J.C.," but, Dr. Barr testified he "didn’t know [the evaluation] was going to
ultimately be for competency."
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                                        22
defendant tried or convicted while incompetent to stand trial has been deprived

of his due process right to a fair trial." Ibid. "Consequently, a court must hold

a competency hearing where the evidence raises a bona fide doubt as to a

defendant's competence." Ibid. The State then "bears the burden of establishing

competence by a preponderance of the evidence." Ibid.

      "The minimum requirements for determining whether a defendant is

competent to stand trial were first established by the United States Supreme

Court in Dusky v. United States, 362 U.S. 402, 402 (1960)." Ibid. "The Court

defined the test as 'whether [the defendant] has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding and

whether he has a rational as well as a factual understanding of the proceedings

against him."   State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007)

(alteration in original) (quoting Dusky, 362 U.S. at 402). "In New Jersey, the

test for competence to stand trial on criminal charges has been codified in

N.J.S.A. 2C:4-4[.]"   M.J.K., 369 N.J. Super. at 547-48.       This statute "has

replaced the generalizations of prior case law with more precise and detailed

standards for determining a defendant's competency[.]" Moya, 329 N.J. Super.

at 506. N.J.S.A. 2C:4-4 provides as follows:

            a. No person who lacks capacity to understand the
            proceedings against him or to assist in his own defense

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                                      23
shall be tried, convicted or sentenced for the
commission of an offense so long as such incapacity
endures.

b. A person shall be considered mentally competent to
stand trial on criminal charges if the proofs shall
establish:

(1) That the defendant has the mental capacity to
appreciate his presence in relation to time, place and
things; and

(2) That his elementary mental processes are such that
he comprehends:

      (a) That he is in a court of justice charged with a
      criminal offense;

      (b) That there is a judge on the bench;

      (c) That there is a prosecutor present who will try
      to convict him of a criminal charge;

      (d) That he has a lawyer who will undertake to
      defend him against that charge;

      (e) That he will be expected to tell to the best of
      his mental ability the facts surrounding him at the
      time and place where the alleged violation was
      committed if he chooses to testify and
      understands the right not to testify;

      (f) That there is or may be a jury present to pass
      upon evidence adduced as to guilt or innocence
      of such charge or, that if he should choose to
      enter into plea negotiations or to plead guilty, that
      he comprehend the consequences of a guilty plea
      and that he be able to knowingly, intelligently,

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                           24
                   and voluntarily waive those rights which are
                   waived upon such entry of a guilty plea; and

                   (g) That he has the ability to participate in an
                   adequate presentation of his defense.

We have found "the competency statutes of the criminal code, specifically

N.J.S.A. 2C:4-4 to -6, apply to juveniles." State in Interest of N.C., 453 N.J.

Super. 449, 455 (App. Div. 2018).

      Defense counsel argues the trial judge was not required to make findings

as to the factors in N.J.S.A. 2C:4-4(a) to (d) because "the standards for a finding

of factual competence were designed to address the legal competence of

adults[.]" In support of this argument, defense counsel cites to a recent study,

which measured the competency to stand trial of adolescents and young adults

and found "adolescents aged [fifteen] and younger . . . performed more poorly

tha[n] the young adults generally[.]"         But our jurisprudence expressly

enumerates the procedures for establishing competency to stand trial, which are

"codified in the criminal code at N.J.S.A. 2C:4-4 to -6 . . . [and] necessarily

apply to juveniles" as well as adults. N.C., 453 N.J. Super. at 457 (emphasis

added).

      "We have previously described our role in reviewing the decisions of a

trial judge respecting competence as 'typically, and properly, highly


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                                       25
deferential.'" M.J.K., 369 N.J. Super. at 548 (quoting Moya, 329 N.J. Super. at

506). "Moreover, we have recognized that the decision regarding co mpetence

is for the judge and not for the experts to make."      Ibid. "Nevertheless, a

determination of competency cannot be sustained in the absence of sufficient

supporting evidence." Purnell, 394 N.J. Super. at 50. Furthermore, "particularly

where crimes of violence are charged, those judicial determinations should be

informed by a comprehensive factual record that provides a basis for the

N.J.S.A. 2C:4-4 determination[.]" Moya, 329 N.J. Super. at 506.

      Here, the trial judge was not provided with qualified expert testimony to

make appropriate findings as to more than half of the factors required for a

determination of competency under N.J.S.A. 2C:4-4.        Notwithstanding our

highly deferential standard of review, we reverse the trial judge's competency

determination, and remand for a proper competency evaluation to be performed

by a qualified expert and for a new competency hearing to be conducted

addressing the factors set forth in N.J.S.A. 2C:4-4 and N.J.S.A. 2C:4-5. As

stated above, the parties may agree to stipulate to J.C.'s incompetence on

remand.




                                                                        A-1613-18T2
                                      26
                                        VI.

      The State next argues that the trial judge improperly dismissed J.C.'s

charges with prejudice, rather than holding the charges in abeyance, because the

judge failed to consider the factors set forth in N.J.S.A. 2C:4-6. Defense counsel

counters that the trial judge performed the appropriate N.J.S.A. 2C:4-6(c)

analysis and determined the charges should be dismissed with prejudice because

holding the charges in abeyance would constitute a constitutionally significant

injury. Because both parties agree this issue should be reviewed for plain error,

we will address it.

      "When a defendant fails to object to an error or raise an issue before the

trial court, we review for plain error.       We may reverse on the basis of

unchallenged error only if the error was 'clearly capable of producing an unjust

result.'" State v. Ross, 229 N.J. 389, 407 (2017) (citation omitted) (quoting R.

2:10-2). "The possibility of an unjust result must be 'sufficient to raise a

reasonable doubt as to whether the error led the jury to a result it otherwise might

not have reached.'" Ibid. (quoting State v. Williams, 168 N.J. 323, 336 (2001)).

"A defendant who does not raise an issue before a trial court bears the burden of

establishing that the trial court's actions constituted plain error." Ibid. "A

defendant assumes this burden because 'to rerun a trial when the error could


                                                                            A-1613-18T2
                                        27
easily have been cured on request, would reward the litigant who suffers an error

for tactical advantage either in the trial or on appeal.'" Ibid. (quoting State v.

Weston, 222 N.J. 277, 294-95 (2015)).

      "When a court determines that a defendant lacks fitness to proceed and

has not regained fitness within three months, it must consider whether the

charges should be dismissed with prejudice or held in abeyance." Moya, 329

N.J. Super. at 510.    Our trial courts are guided by N.J.S.A. 2C:4-6(c) in

determining whether charges against a defendant who has been deemed

incompetent to stand trial should be held in abeyance or dismissed. See id. at

510-11. N.J.S.A. 2C:4-6(c) provides, in part, as follows:

            There shall be a presumption that charges against a
            defendant who is not competent to proceed shall be held
            in abeyance. The presumption can be overcome only if
            the court determines, using the factors set forth in this
            subsection, that continuing the criminal prosecution
            under the particular circumstances of the case would
            constitute a constitutionally significant injury to the
            defendant attributable to undue delay in being brought
            to trial.

            In determining whether the charges shall be held in
            abeyance or dismissed, the court shall weigh the
            following factors:     the defendant's prospects for
            regaining competency; the period of time during which
            the defendant has remained incompetent; the nature and
            extent of the defendant's institutionalization; the nature
            and gravity of the crimes charged; the effects of delay
            on the prosecution; the effects of delay on the

                                                                          A-1613-18T2
                                       28
            defendant, including any likelihood of prejudice to the
            defendant in the trial arising out of the delay; and the
            public interest in prosecuting the charges.

The statute expressly creates a presumption that charges should be held in

abeyance and the "presumption is overcome only upon a determination, applying

the factors noted above, that in the particular circumstances of the case, the

undue delay creates a constitutionally significant injury to the defendant."

Moya, 329 N.J. Super. at 511.

      Here, the trial judge acknowledged "the presumption . . . can be overcome

only if the [c]ourt determines . . . that continuing the criminal prosecution under

the particular circumstances of this case would constitute a [c]onstitutionally

significant injury to the defendant attributable to undue delay in being brought

to trial." After analyzing the factors set forth in N.J.S.A. 2C:4-6(c), the trial

judge concluded "justice, and fairness, and equity in regard to this particular

circumstance justifies that this matter be dismissed at this time[.]" The State

concedes the trial judge considered each of the statutory factors, but it contends

the court's analysis was fatally flawed and would "set[] a dangerous

precedent[.]"

      As to the first factor, the trial judge concluded, based upon Barr's opinion,

that J.C.'s "prospects for -- regaining competency are very small" and "it would


                                                                           A-1613-18T2
                                       29
take nothing short of a miracle[.]" The State challenges this determination,

arguing Barr's testimony "was [a] net opinion and an insufficient basis upon

which to make such a finding." Defense counsel claims the conclusion was

based on sufficient, credible evidence, including the trial judge's personal

observations of J.C. in the courtroom. Notwithstanding our deferential standard

of review, we disagree with the trial judge's ruling because Barr did not possess

the expertise to make a determination as to J.C.'s competency, and therefore, the

trial judge committed plain error by relying on Barr's opinion relative to J.C.'s

prospects for regaining competency.

       As to the period of time during which J.C. has remained incompetent, the

trial judge found J.C. "has suffered from the conditions he suffers from . . . for

all of the twelve years of his life[,]" but as argued by the State, "[t]he trial court

did not cite to any evidence or testimony to support this determination."

Although defendant argues that the conclusion is supported by J.P.'s IEP, the

IEP indicates that prior to age five, J.C. "achieved developmental milestones at

age expectation," and he was referred to special education services while he was

in kindergarten "under the classification '[c]ommunication [i]mpaired.'" The




                                                                              A-1613-18T2
                                         30
court found that the third factor, the nature and extent of J.C.'s

institutionalizations, is not applicable here, and the State agrees.6

      As to the fourth factor, the trial judge concluded the nature and gravity of

the crime charged "is serious . . . . [A]nd can harm someone for a lifetime, and

may have here." The State does not challenge this determination, but argues

that "the trial court did not make a true finding as to how the factor weighed [,]"

and defense counsel asserts "[t]he judge unquestionably regard[ed] aggravated

sexual assault . . . as grave[.]" The record reveals the trial judge clearly and

unequivocally stated "the nature and gravity of the crime here is serious. The

State has every right to prosecute this crime."

      As to the fifth and sixth factors, the trial judge noted the prosecution will

have an opportunity to prosecute this case in the future; but, if the matter was

delayed, J.C. "would have to pay for his crime years in the future after working

hard to get to the point where he even understood what was happening to him. "

The trial judge concluded: "I don't believe there would be any prejudice to the

defendant other tha[n] the unfairness of punishing him years from now after he

works so hard to get to the point where he can aid in his defense." The State



6
  The trial court noted J.C. was being housed "in a facility away from his
family[.]"
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                                        31
argues these findings did not address the "availability of witnesses, preservation

of evidence, and the extent to which the delay may have resulted from causes

attributable to the defense[.]"

      "In weighing the effects of delay on the defendants and prosecution, the

judge should consider availability of witnesses, preservation of evidence, and

the extent to which the delay may have resulted from causes attributable to the

defense[.]" Moya, 329 N.J. Super. at 515. The trial judge acknowledged these

factors, noting:

            [The] [p]rosecutor will be able to proceed. The eight
            year old will be older and will have to relive all of this
            at some time in the future and talk about what his
            brother did to him when he was eight years of age, or
            whatever other witnesses there are that there may have
            been admissions made to and/or could testify as to what
            the children said to them.

      As to the final factor, the trial judge concluded:

            Certainly in today's society an eight year old who is
            allegedly sexually assaulted should have every right in
            making sure that charges are heard against them.
            Certainly a twelve year old in the condition of this
            twelve year old though needs to be able to participate
            in his defense, and I do not see him being able to do so
            at any time in the reasonable future.

      Because the trial judge's decision to dismiss the charges against J.C. with

prejudice, rather than hold them in abeyance was based on Barr's unqualified


                                                                          A-1613-18T2
                                       32
opinion that J.C. would likely not regain his competency, we determine the

dismissal constitutes plain error warranting reversal.

                                        VII.

      Finally, the State argues the trial judge erred in dismissing J.C.'s charges

with prejudice without making a determination as to J.C.'s dange rousness to

himself or others, and the matter must be remanded for an evaluation of J.C.'s

dangerousness. We agree.7

      When a defendant is found to be incompetent to stand trial, the court must

determine "whether such a defendant is so dangerous to himself or others as to

require institutionalization or whether placement in an out-patient setting or

release is appropriate."     Id. at 511; see N.J.S.A. 2C:4-6(b) ("If the court

determines that the defendant lacks fitness to proceed . . . the court may commit

him to the custody of the Commission of Human Services to be placed in an

appropriate institution if it is found that the defendant is so dangerous to himself

or others as to require institutionalization[.]").


7
   Defense counsel argues the State's argument regarding J.C.'s dangerousness
was not raised below. We have acknowledged that whether the defendant is a
danger to himself or others is "a prime issue for judicial inquiry" in the
application of N.J.S.A. 2C:4-6. Moya, 329 N.J. Super. at 511. Moreover, as
noted in the State's reply brief, the State objected to Barr rendering an opinion
as to J.C.'s dangerousness at the competency hearing, thereby bringing the issue
to the trial judge's attention.
                                                                            A-1613-18T2
                                         33
       We held that, in enacting N.J.S.A. 2C:4-6(b), the Legislature

"contemplate[d] that an inquiry respecting the crimes charged may be

appropriate not only with respect to the issue of competency but to the issue of

danger which must be resolved by the trial judge." Moya, 329 N.J. Super. at

511. "The determination of dangerousness involves prediction of a defendant's

future conduct rather than mere characterization of his demonstrated past

conduct." Id. at 513. "However past conduct is important evidence as to

probable future conduct and should be given substantial weight in a

dangerousness determination." Ibid. "[P]articularly where crimes of violence

are charged, those judicial determinations should be informed by a

comprehensive factual record that provides a basis . . . for a N.J.S.A. 2C:4-6

conclusion that a defendant may be safely and unconditionally released." Id. at

506.

       Here, the trial judge failed to make any findings as to the danger J.C.

might pose to himself or others. See R. 1:7-4(a). Moreover, both parties agree

that the record suggests J.C. has a history of "potentially risky and unpredictable

conduct[,]" warranting such a determination.

       In summary, we reverse the trial judge's determination that J.C. is

incompetent to stand trial and we remand the matter for a new competency


                                                                           A-1613-18T2
                                       34
evaluation and hearing under N.J.S.A. 2C:4-4 to -6, unless the parties stipulate

to J.C.'s incompetency on remand.        We reverse the order dismissing the

complaint with prejudice for the reasons expressed herein and for consideration

by the trial judge on remand. The trial judge shall also determine whether J.C.

poses a danger to himself and others.

      Reversed and remanded. We do not retain jurisdiction.




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                                        35
