                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5632-18T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

D.L.,1

     Defendant-Respondent.
______________________________

                    Submitted January 29, 2020 – Decided March 17, 2020

                    Before Judges Whipple, Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 17-06-
                    0496.

                    Charles A. Fiore, Gloucester County Prosecutor,
                    attorney for appellant (Timothy James Gaskill,
                    Assistant Prosecutor, on the brief).

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

1
   We employ initials to protect the confidentiality of the alleged victims of
sexual offenses. R. 1:38-3(c)(12).
PER CURIAM

      By leave granted, the State appeals from the July 26, 2019 Law Division

order dismissing an indictment with prejudice pursuant to N.J.S.A. 2C:4-6(c),

which authorizes such dismissal when the court determines the defendant lacks

fitness to stand trial, "has not regained his fitness to proceed within three

months," and "continuing the criminal prosecution under the particular

circumstance of the case would constitute a constitutionally significant injury to

the defendant attributable to undue delay in being brought to trial." We affirm.

      On June 28, 2017, following the issuance of complaint-summonses, a

Gloucester County Grand Jury returned an indictment charging defendant with

two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). The charges

stemmed from allegations that between 2012 and 2015, defendant engaged in

sexual contact with his two half-sisters, "by touching or rubbing" their "genital

area," beginning when they were five- and seven-years-old, and defendant was

eighteen-years-old.

      On February 13, 2018, at defense counsel's request, the trial court ordered

an evaluation to determine whether defendant was competent to stand trial

pursuant to N.J.S.A. 2C:4-5(a). After interviewing defendant at the Gloucester

County Public Defender's Office on March 22 and April 26, 2018, reviewing


                                                                          A-5632-18T1
                                        2
background information, which included defendant's medical, educational,

occupational, and substance abuse history, as well as administering various

psychological tests, Dr. Susie Chung, Ph.D., a clinical psychologist employed

by Ann Klein Forensic Center (Ann Klein), submitted a report to the court dated

June 1, 2018, concluding defendant was "incompetent to stand trial."

      In the report, Chung recounted that defendant was "diagnosed with

cerebral palsy at birth," "physically and emotionally abus[ed]" by his step-

father, and hospitalized "for [i]npatient psychiatric treatment" after expressing

suicidal ideation when he was arrested on the charges. Based on her evaluation,

Chung diagnosed defendant with "[b]orderline [i]ntellectual [f]unctioning." She

determined that defendant's "overall intellectual functioning [was] below

average," and "he ha[d] deficits in his adaptive functioning," or "skills to live

independently[]." Although inconsistencies in defendant's test data showed

"some evidence that [defendant was] likely not responding with genuine effort,"

and could have been indicative of "feigned" as opposed to "true memory

impairment," Chung ruled out "[m]alingering" in her diagnosis and concluded

defendant's "intellectual functioning level may have negatively impacted his

score[s]."




                                                                         A-5632-18T1
                                       3
      Applying the competency to stand trial criteria delineated in N.J.S.A.

2C:4-4(b),2 Chung determined defendant's "factual understanding of the legal

process" was "superficial," and "[h]is rational ability to work with his attorney

and to participate in the legal process" was "limited" as a result of his "cognitive

deficits." Chung stated defendant was "probably unable to make a rational

decision about testifying," "would not currently be able to knowingly,

intelligently, and voluntarily relinquish those rights which are waived if one

pleads guilty," and "does not appear to have the ability to participate in an

adequate presentation of his defense, as his communication skills appear limited,

and his ability to remember information seems impaired."

      Although Chung opined defendant was incompetent to stand trial, relying

on the test data, she noted defendant's "response style indicated that at best, he



2
    N.J.S.A. 2C:4-4(b) provides, in pertinent part, that "[a] person shall be
considered mentally competent to stand trial on criminal charges if the proofs
shall establish" that he "has the mental capacity to appreciate his presence in
relation to time, place and things;" and "comprehends . . . [t]hat he is in a court
. . . charged with a criminal offense;" "[t]hat there is a judge on the bench;"
"[t]hat there is a prosecutor present who will try to convict him . . . ;" "[t]hat he
has a lawyer who will . . . defend him . . . ;" that he understands what is "expected
. . . if he chooses to testify and understands the right not to testify;" that he
understands the role of the jury and "comprehend[s] the consequences of a guilty
plea" if he "choose[s] to enter into plea negotiations or to plead guilty;" and
"[t]hat he has the ability to participate in an adequate presentation of his
defense."
                                                                             A-5632-18T1
                                         4
was not putting forth genuine effort, and at worst, he was purposely giving

wrong answers to the questions." Chung stated that given the "inconsistent data,

it [was] difficult to form an opinion as to whether . . . defendant will regain his

competence in the foreseeable future," but it was "possible that with additional

education and training on competency-related skills, he may become competent

to proceed." Notably, Chung also opined that defendant "does not appear to be

at imminent danger to self, to others, or to property as a result of mental illness,

since he does not have a mental illness." "However, his dangerousness risk (to

himself more than anyone else) would be increased by the deficits in his adaptive

functioning skills," and "deficits in judgment and decision-making as a result of

his intellectual deficits would make him more susceptible to negative influences,

particularly in an unstructured setting." Chung recommended that defendant

"consult with a neurologist to assess" the impact of his reported history of

seizures on his cognitive abilities.

        There is no indication in the record that either party contested the report's

findings as permitted under N.J.S.A. 2C:4-6(a). Thus, based on the report, on

June 29, 2018,3 the judge suspended the proceedings and ordered Ann Klein to

restore defendant to competency, or determine whether or not he could be


3
    The transcript for that proceeding was not included in the record.
                                                                             A-5632-18T1
                                          5
restored. On January 4, 2019, the judge ordered Ann Klein to conduct another

competency evaluation.4 When the parties returned to court on February 22,

2019,5 although Chung had interviewed defendant on February 15, 2019, her

report was not completed. On March 28, 2019, Chung submitted a report to the

court which essentially mirrored her prior report. On April 5, 2019, the judge

conducted a testimonial hearing during which Chung, who was qualified without

objection "as an expert in the area of clinical psychology for competency and

ability to stand trial," testified for the State in accordance with her two prior

reports, both of which were admitted into evidence.

        During the hearing, Chung confirmed her ultimate opinion that defendant

did "not appear competent to proceed," but reiterated her "caveat" that his "test

results" on the Test of Memory Malingering (TOMM), a psychological test

administered when "there is suspicion . . . that a person is feigning or

exaggerating their cognitive impairment," "put[] into question whether . . . his


4
  In accordance with N.J.S.A. 2C:4-6(c), requiring the court to hold a hearing
to determine whether the charges shall be dismissed with prejudice or held in
abeyance "[i]f the defendant has not regained his fitness to proceed within three
months," the judge ordered another competency evaluation on September 5,
2018, and scheduled a return date of October 15, 2018. However, because Ann
Klein failed to comply with the judge's earlier orders, the parties did not return
on the scheduled date.
5
    The transcript for that proceeding was not included in the record.
                                                                          A-5632-18T1
                                         6
responses were completely genuine and if he was being fully forthcoming."

Chung explained she did not believe defendant was "malingering" in the sense

that he was "purposefully feigning symptoms." However, "there [was] still the

question that for whatever reason[,] he [was] not giving [her] his best effort."

      Chung testified "it [was] possible [defendant] could be restored to

competency, but it [was] possible he might not be." She explained she could

not form a definitive conclusion about his prospects of restoration for "a variety

of reasons." First, "when there is evidence of intellectual disability" as in

defendant's case, "those individuals sometimes . . . take[] . . . longer to learn new

information," given the fact that defendant "never had exposure to . . . the

criminal justice system before." The "second [reason was] that there [was] still

the question of . . . malingering." Finally, "because of the possibility that there

[were] medical issues . . . interfering with his ability to learn and to retain

information related to how the court process works," she referred to the

recommendation in her reports that defendant be examined by a neurologist to

"rule out . . . that seizures . . . could possibly interfere with his ability to learn

the information." She noted however that "Ann Klein [did not] provide that

[service]."




                                                                              A-5632-18T1
                                          7
      Chung recommended that defendant should first participate in "an

outpatient restoration program." Although she testified extensively about the

inpatient   restoration   program   conducted    by    Ann   Klein   to   restore

institutionalized individuals previously found incompetent to stand trial, she

confirmed that Ann Klein did "not provide an outpatient restoration program"

and did not "pay private facilities to provide outpatient restoration." She was

also unaware of any privately-run outpatient programs that would address the

same issues.

      Oral argument was conducted on April 22, 2019. Based on Chung's

testimony and reports, the prosecutor did not "dispute the finding of

[in]competency" or lack of dangerousness. However, "since there ha[d] not

been a determination that competency [could not] be restored," and "there

appear[ed] to be a lot of unknown[s] surrounding the ability to [restore

defendant] . . . to competency," he believed there was a "need to find some way

of at least attempting to restore competency."        The prosecutor noted that

N.J.S.A. 2C:4-6(b) authorized the court to place a defendant in an out-patient

setting, or, alternatively, commit a defendant to the custody of the Commissioner

of Human Services for placement in an appropriate institution "for inpatient




                                                                          A-5632-18T1
                                       8
treatment for those who are found to be a danger to themselves or others."6 The

prosecutor pointed out that the statute provided for "outpatient treatment" as an

"alternative . . . without . . . actually provid[ing] any sort of outpatient treatment

for th[o]se individuals." While admitting that Ann Klein's inpatient restoration

program was "the only treatment . . . available in the State of New Jersey . . . for

restoring competency," the prosecutor acknowledged it was not the "most

appropriate course of action" for defendant given his lack of dangerousness, and

conceded that he was "asking for treatment that appears to [not exist] at this

time."

         Based on Chung's "credible" testimony, the judge found defendant was

"not competent to stand trial," and was not "a danger to himself or others or

property" to "require institutionalization," and "suspended" the proceedings "for

a period of three months." Although the judge acknowledged the seriousness of

the charges, because defendant was not "a danger to himself or others," had

appeared at "every [court] listing" while released, and had no prior record, she


6
  N.J.S.A. 2C:4-6(b) provides in pertinent part "[i]f the court determines that
the defendant lacks fitness to proceed" and suspends the proceedings, he or she
may be committed to "the custody of the Commissioner 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, or it shall
proceed to determine whether placement in an out-patient setting or release is
appropriate[.]"
                                                                              A-5632-18T1
                                          9
determined that commitment to the custody of the Commissioner of Human

Services for participation in Ann Klein's inpatient restoration program was not

appropriate, and any restorative services provided would have to be in an out-

patient setting pursuant to N.J.S.A. 2C:4-6(b).

      On April 25, 2019, defendant moved to compel Ann Klein to provide him

with legal competency restoration services. Ann Klein opposed the motion,

asserting that "N.J.S.A. 2C:4-6 neither provide[d] a basis to permit [d]efendant

. . . a non-committed individual . . . to participate in its [c]ompetency

[r]estoration [p]rogram nor obligate[d it] to find a suitable alternative out-patient

program." In a supporting certification, David Kensler, Ann Klein's Chief

Executive Officer, averred that Ann Klein only "provide[d] competency

restoration programs [to] individuals who are [already] civilly committed to its

care and meet certain clinical eligibility criteria." According to Kensler, because

"[t]he competency restoration program includes group sessions" with

"individuals deemed to be dangerous to self or others," for safety and "security

reasons, the competency restoration program cannot be provided on an

outpatient basis to visitors who are not committed" to the facility. Kensler also

certified Ann Klein had "neither the infrastructure nor the authority to provide

competency restoration services in the community."


                                                                             A-5632-18T1
                                        10
      On July 3, 2019, defendant moved to dismiss the charges with prejudice

pursuant to N.J.S.A. 2C:4-6(c). On July 19, 2019, the judge conducted a hearing

on both of defendant's pending motions.7 During the hearing, the prosecutor

opposed the dismissal with prejudice, arguing that both the "presumption" and

the "factors [contained in N.J.S.A. 2C:4-6(c)] weigh[ed] in favor of an

abeyance." In support, the prosecutor argued the charges were "very serious,"8

there was "a serious public interest in prosecuting somebody for second-degree

sexual charges," defendant was "not being prejudiced by a delay" because he

was not confined in a jail or an institution "waiting for a resolution," and there

was no expert opinion "that he cannot be restored to competency."                The

prosecutor urged the court to hold the charges in abeyance for another "six

months" so that he could "look into . . . getting another expert to . . . mak[e] a[n]

[actual] determination . . . of whether or not [defendant] can be restored," a

determination Chung "seem[s] unable to make." The prosecutor also asserted it

was not the State's "burden" to "fix" the "lack of resources." Rather, "the burden




7
  The parties appeared on June 28, 2019, to consider Ann Klein's response.
However, the judge agreed to relist the motion on the next return date.
8
  During the April 22, 2019 oral argument, the prosecutor had described the
charges as a product of "late reporting . . . from a pretty long time ago."
                                                                             A-5632-18T1
                                        11
[was] on the system itself to have [an outpatient restoration] program that the

statute require[d]."

      In contrast, while acknowledging that "the State . . . enjoy[ed] a

presumption . . . against the dismissal," defendant argued that given the

unavailability of any outpatient restoration program, the presumption was

overcome because "continuing criminal prosecution under this circumstance

would constitute a constitutionally significant injury to . . . defendant[]

attributable to undue delay[] in being brought to trial." In support, relying on

the statutory factors, defendant pointed to the significant "[t]hirteen-month[]"

period "during which defendant has remained incompetent," the adverse "effects

o[f] the delay," including the likelihood of "the memories of . . . [favorable]

defense witnesses" "fad[ing]" as "more time . . . passes" since the crimes

allegedly began over seven years ago, as well as the fact that "the parents of the

victims have [not] been involved in th[e] case," cannot be located, and

previously stated they "did not want [defendant] placed in jail." Defendant

added "it shocks the consci[ence] that a year has passed since he was found to

be incompetent and nothing has been done to attempt to restore him[,] and the

State still wants to drag it out for six more months with no plan in place to

attempt to restore [him]," when "absolutely nothing will have changed between


                                                                          A-5632-18T1
                                       12
now and six months from now in regard to restoring him or . . . [his] status of

. . . [in]competency."

      Following oral argument, the judge denied defendant's motion to compel

Ann Klein to provide restoration services to defendant on an outpatient basis,

concluding that Ann Klein's program was not suited "for outpatients" and the

"[c]ourt has no authority to compel [Ann Klein] to come up with a program."

However, the judge granted defendant's motion to dismiss the indictment with

prejudice but stayed the July 19, 2019 memorializing order for forty-five days.

      In an oral opinion, the judge recounted she previously found defendant

"not competent," and "not a danger to himself and/or the community," and "held

the matter in abeyance" to find an outpatient restoration program. However,

"there are no programs within this [S]tate that [have] been brought to the

[c]ourt's attention that . . . [defendant] can access . . . in order to attempt to

restore him to competency." The judge continued

            this matter has been suspended for almost two years
            waiting for him to be restored to competency. I still
            don't have a program to put him into in order to try to
            facilitate that, and it would be a futile effort to just
            postpone it with no program, no services, nothing in
            effect to try to restore him to competency.

      Relying on Jackson v. Indiana, 406 U.S. 715 (1972), the judge

acknowledged "[a] competent individual has a right to have his criminal matter

                                                                          A-5632-18T1
                                       13
proceed to trial."     However, "[w]e cannot proceed to trial because of

[defendant's] incompetence." The judge concluded to continue to hold the

proceedings in abeyance after having "postponed it on several occasions to see

whether we could come up with a way to restore him" to competence "would be

a violation of due process" because no such program exists, and that fact will

not change if another postponement is granted. This appeal followed.

      On appeal, the State raises the following points for our consideration:

            POINT I

            THE COURT LACKED INFORMATION NEEDED
            TO DETERMINE WHETHER RESTORATION TO
            COMPETENCY WAS POSSIBLE.

            POINT II

            STATE LAW REQUIRES PROGRAMS TO BE
            MADE AVAILABLE THAT THE DEFENDANT
            WAS PROHIBITED FROM PARTICIPATING IN.

            POINT III

            THE COURT IMPROPERLY BALANCED THE
            FACTORS IN FAVOR OF DISMISSAL.

      "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." State v. Moya,

329 N.J. Super. 499, 510 (App. Div. 2000). The decision to dismiss or hold in

                                                                         A-5632-18T1
                                      14
abeyance is "in the sound discretion of the court" and thus subject to an abuse

of discretion standard on review. State v. Gaffey, 92 N.J. 374, 389 (1983). "In

determining whether charges against an incompetent defendant shall be held in

abeyance or dismissed after the three month period following the initial

determination of incompetency, the court is required to consider, not only

factors relating to the defendant's competency," but the factors delineated in

N.J.S.A. 2C:4-6(c). Moya, 329 N.J. Super. at 510.

      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
            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.


                                                                         A-5632-18T1
                                       15
      "Plainly, a prime issue for judicial inquiry is 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. N.J.S.A. 2C:4-

6(b)." Moya, 329 N.J. Super. at 511.

            [T]he current language of [N.J.S.A. 2C:4-6(c)] was
            intended to address legislative concern about cases in
            which charges against an incompetent are prematurely
            dismissed with prejudice. The statute leans toward
            holding a matter in abeyance, although always subject
            to correction for constitutionally significant injury
            arising from undue delay in bringing a defendant to
            trial.
            [Ibid.]

      In Gaffey, our Supreme Court held the adequacy of the period of time

during which the defendant remains unfit to be tried "is to be determined in

terms of the real or likely prejudice to the rights of the defendant that can

actually be shown or reasonably be inferred from the delay in bringing the matter

to trial." 92 N.J. at 389. "In weighing the effects of delay on the defendant[]

. . . , 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 ultimate "determination should be made upon a balancing of the

strength of evidence that defendant's prospects for regaining competency appear


                                                                         A-5632-18T1
                                       16
hopeless," against the statutory factors, including the likelihood of prejudice to

the defendant. Gaffey, 92 N.J. at 389.

            When these factors coalesce to establish the
            untenability of continuing a criminal prosecution, the
            indictment should be dismissed with prejudice. When
            this result is not demanded by the weighing of all
            relevant evidence, the indictment may be either
            dismissed without prejudice or held in abeyance in the
            sound discretion of the court.

            [Ibid.]

      In Jackson, "a mentally defective deaf mute with a mental level of a pre-

school child," was charged with two counts of robbery, found incompetent to

stand trial under "Indiana['s statutory] procedures for determining . . .

competency to stand trial," and "committed to the Indiana Department of Mental

Health until such time as that Department should certify to the court that 'the

defendant is sane.'"    406 U.S. at 717-19.      The defendant argued that his

"commitment under these circumstances amounted to a 'life sentence ' without

his ever having been convicted of a crime," since "there was no evidence that

[he] was 'insane,' or that he would ever attain a status which the court might

regard as 'sane' in the sense of competency to stand trial." Id. at 719.

      The United States Supreme Court agreed and held that the commitment

deprived the defendant "of his Fourteenth Amendment rights to due process and


                                                                           A-5632-18T1
                                       17
equal protection." Ibid. In reversing, the Court concluded that Indiana could

not "constitutionally commit the [defendant] for an indefinite period simply on

account of his incompetency to stand trial on the charges filed against him." Id.

at 720. The Court explained that

             a person charged by a State with a criminal offense who
             is committed solely on account of his incapacity to
             proceed to trial cannot be held more than the reasonable
             period of time necessary to determine whether there is
             a substantial probability that he will attain that capacity
             in the foreseeable future. If it is determined that this is
             not the case, then the State must either institute the
             customary civil commitment proceeding that would be
             required to commit indefinitely any other citizen, or
             release the defendant. Furthermore, even if it is
             determined that the defendant probably soon will be
             able to stand trial, his continued commitment must be
             justified by progress toward that goal.

             [Id. at 738.]

      The Court noted that the defendant was "confined for three and one-half

years on a record that sufficiently establishe[d] the lack of a substantial

probability that he will ever be able to participate fully in a trial." Id. at 738-39.

The Court remanded for consideration of whether fundamental fairness required

that the charges against Jackson be dismissed, noting that "[a]t the least, due

process requires that the nature and duration of commitment bear some




                                                                              A-5632-18T1
                                        18
reasonable relation to the purpose for which the individual is committed." Id.

at 738.9

      Here, although defendant was not committed, the judge properly applied

due process considerations in concluding that the presumption to hold the

charges in abeyance was overcome. Contrary to the State's assertion, we discern

no abuse of discretion in the judge's application of the N.J.S.A. 2C:4-6(c)

factors, and determination that continuing the criminal prosecution under the

unique circumstances of the case would constitute a constitutionally significant

injury to defendant attributable to the undue delay in bringing him to trial.

      "[J]udicial determinations should be informed by a comprehensive factual

record that provides a basis for the N.J.S.A. 2C:4-4 determination and for a

N.J.S.A. 2C:4-6 conclusion . . . ." Moya, 329 N.J. Super. at 506. The State

argues that the unresolved issues in this matter rendered dismissal by the judge

premature and inappropriate. However, based on the timeline established in the

record, the judge's determination of incompetency to stand trial was first made




9
  Unlike Indiana's statute, N.J.S.A. 2C:4-6(b) provides that "no commitment to
any institution shall be in excess of such period of time during which it can be
determined whether it is substantially probable that the defendant could regain
his competence within the foreseeable future."


                                                                          A-5632-18T1
                                       19
on June 29, 2018, not April 22, 2019, as the State contends.10 Because Chung's

opinion regarding defendant's prospects for restoration of competency

essentially remained unchanged from her first report dated June 1, 2018, to her

testimony during the April 5, 2019 hearing, the State had ample time and

opportunity to hire another expert to examine defendant or attempt to locate

suitable treatment for defendant. Its dilatory effort in that regard was properly

rejected by the judge as a basis to deny the application for dismissal with

prejudice.

      The State also argues that the judge lacked information needed to

determine whether restoration to competency was possible given Chung's

inconclusive opinion. However, informed by Chung's testimony and reports,

the judge determined after her two-year-long experience with defendant that he

was not substantially likely to attain competency in the near future, particularly




10
   According to the State, "[t]he June 29, 2018 determination was inconclusive
and the case entered what was essentially an extended holding pattern based
purely on logistical issues while the parties and court coordinated with Ann
Klein for a follow-up evaluation." However, the State failed to provide the June
29, 2018 transcript, and Chung's June 1, 2018 report conclusively determine d
that defendant was "considered incompetent to stand trial at this time." Indeed,
the only unresolved issue pertained to whether defendant could be restored to
competency.
                                                                          A-5632-18T1
                                       20
given the unavailability of any type of outpatient restoration program to even

attempt restoration.

      It is the judge and not the expert who must make these ultimate

determinations.    See, e.g., In re D.C., 146 N.J. 31, 59 (1996) ("The final

determination of dangerousness lies with the courts, not the expertise of

psychiatrists and psychologists. . . . The ultimate decision on dangerousness is,

therefore, a legal one, not a medical one, even though it is guided by medical

expert testimony."); Moya, 329 N.J. Super. at 506 ("We recognize that it is the

judge and not the experts who must make the ultimate determinations as to

competency and as to the likelihood of danger to self or society."). "Our review

of such determinations is typically, and properly, highly deferential." Ibid.

      Notwithstanding the State's contrary arguments, we discern no abuse of

discretion on the part of the judge to warrant our intervention. The record

sufficiently established the lack of a substantial probability that defendant will

ever be able to participate fully in a trial.

      Affirmed.




                                                                          A-5632-18T1
                                         21
