                           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                        NOT FOR PUBLICATION WITHOUT THE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-5526-14T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RICHARD R. LEONCINI,

     Defendant-Appellant.
_______________________________

              Argued February 6, 2017 – Decided March 1, 2017

              Before Judges Sabatino and Nugent.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 14-07-0697.

              Jaime B. Herrera, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Ms. Herrera, of counsel and on the briefs).

              Jennifer     B.     Paszkiewicz,     Assistant
              Prosecutor, argued the cause for respondent
              (Robert   D.   Bernardi,   Burlington   County
              Prosecutor, attorney; Ms. Paszkiewicz, of
              counsel and on the briefs).

PER CURIAM

        Tried by a jury, defendant Richard R. Leoncini was found

guilty of second-degree eluding, N.J.S.A. 2C:29-2(b).                   The trial
judge downgraded the conviction to a third-degree offense at

sentencing and imposed a three-year flat custodial sentence.

       On appeal, defendant raises two arguments in his brief:

           POINT I

           DEFENDANT WAS DEPRIVED OF HIS DUE PROCESS
           RIGHT TO A FAIR TRIAL BECAUSE DESPITE EVIDENCE
           THAT HIS MENTAL STATE HAD DECLINED SINCE THE
           OUTSET OF THE TRIAL, THE TRIAL COURT FAILED
           TO REEVALUATE DEFENDANT'S COMPETENCE.

           POINT II

           THE TRIAL COURT ERRED IN IMPOSING A PRISON
           SENTENCE WHERE DEFENDANT'S EXTENSIVE HISTORY
           OF MENTAL ILLNESS, HIS SUICIDAL TENDENCIES,
           AND HIS MEDICAL ISSUES OUTWEIGHED THE NEED FOR
           GENERAL DETERRENCE.

Having considered these arguments in light of the record and the

applicable legal principles, we affirm.

                                 I.

       The factual scenario arises out of defendant's operation of

his vehicle on February 1, 2014, and his related conduct on that

day.    The proofs at trial revealed the following sequence of

events.




       The Driving Episode

       On the day in question, Mansfield Township Police Detective

Daniel Ehnstrom was on duty around 6:30 p.m. when he witnessed a

                                 2                          A-5526-14T1
white Chevrolet HHR make an illegal U-turn on Route 206.                  The

detective, who was driving a marked patrol car in the opposite

direction, turned around to pursue the Chevrolet.             He activated

the police car's emergency lights.        Within "a few seconds," the

detective caught up to the Chevrolet, but it continued going at

the same speed.

     The detective kept following the Chevrolet as it drove along

the state highway.       Attempting to catch the pursued driver's

attention, Ehnstrom sounded his air horn and police siren, but the

driver   did   not   stop.   Throughout   the    encounter,    the    driver

essentially maintained the same speed.

     As the detective's pursuit continued, the Chevrolet driver

turned onto Route 68, a four-lane highway.        Once on that highway,

the driver began to swerve between lanes.        He stuck his left hand

out the window to wave at the police car, which Ehnstrom perceived

as "an effort for me to pull up next to him." The driver approached

the intersection at Nade Drive, and then, according to Ehnstrom,

ran the red light without slowing down.         At the next red light at

Mansfield Road East, Ehnstrom testified, the driver "slowed down

a little bit," but still ran the red light.        Further along, at the

intersection with Route 537, the driver "appeared to hit the brakes

and slow up," but did not stop at the red light.



                                   3                                 A-5526-14T1
       Ehnstrom testified that the driver wore camouflaged clothing

and was heading in the direction of Fort Dix.      Route 68 ultimately

dead-ends into the entrance of that military base.       The detective

radioed dispatch "to notify the Department of Defense and the

military personnel that we were headed in their direction in case

there may be some sort of terrorist or some other concern."

       Further down Route 68, the road narrowed into two lanes, one

in each direction.     The Chevrolet and the police car then came

upon two other cars, which were stopped at a red light at the

Saylors Pond Road intersection.        To get around those cars, the

Chevrolet driver veered into the lane of oncoming traffic, again

running a red light.

       When the Chevrolet and the police car approached Fort Dix

security checkpoint, the Chevrolet driver stopped his car and got

out.    Detective Ehnstrom observed that the driver was a "white

male, probably approximately in his 50s, wearing a camouflage

[basic military uniform], [and] kind of disheveled looking."         The

detective later identified the driver as defendant.

       Detective Ehnstrom got out of his police car and approached

defendant.     He   testified   that   defendant   "complied   and   was

handcuffed and was taken into custody."            Defendant gave the

detective his real name and did not try to mislead him.



                                   4                            A-5526-14T1
      Fort    Dix       personnel   apparently     were   in     possession     of

defendant's driver's license, based on a previous interaction with

him at the base earlier that day. According to Ehnstrom, "probably

ten or twelve" security officers were stationed at the gate,

instead of the usual two officers.              The base employees had also

constructed a temporary barricade.

      Defendant's Account

      Defendant presented a somewhat different narrative during his

own trial testimony.          According to his account, on February 1,

2014, after watching a television show about American soldiers

being wounded overseas, he "drove down to Fort Dix and . . .

started asking . . . questions."             Defendant asserted that he was

concerned about how the military "reinforce[s] the Humvees or why

are   all    of   our    service    personnel    coming   back   with   so    many

injuries."

      Defendant acknowledged that he drove to Fort Dix wearing

camouflage.       Upon arrival, he asked an officer at the security

booth several questions relating to his concerns about wounded

service personnel.          The security officer requested and obtained

defendant's identification, which the officer kept.                 The officer

told defendant he could not leave.              According to defendant, this

interaction made him nervous, so he got into his Chevrolet and

left the base without his identification.

                                         5                               A-5526-14T1
       Defendant drove away from Fort Dix onto Route 68 and turned

onto Route 206.        At that point, he realized he should not be

driving without his license.          According to defendant, he called

either 4-1-1 or 9-1-1, and asked for a State Police dispatcher.

He claimed that he asked for "backup" from the State Police to

accompany him, "because [he] didn't know if [he] went back [to

Fort Dix] what they were going to do."

       While still on the phone, defendant turned his Chevrolet

around by making a U-turn on Route 206.              He claimed that he did

not see a sign indicating such a U-turn was improper.                  At that

point, he dropped his cell phone onto the car floor.                He leaned

over to try and pick it up.          When he looked up again, defendant

noticed what he believed was the State Police "backup" that he had

requested, driving behind him.           According to defendant, he did not

want to pull over because he did not possess his identification.

       Defendant continued driving toward Fort Dix.              He testified

that he waved at the police vehicle following him "two or three"

times.       Although he acknowledged driving through several red

lights, defendant explained, "I was driving real slow. The officer

that   was    behind   me   kept   his       distance.   He   wasn't   driving

aggressive.        I   wasn't      driving      aggressively."      Defendant

acknowledged that once he arrived at Fort Dix, he was arrested.



                                         6                             A-5526-14T1
      Defendant explained at trial why he thought the police had

followed him, and why he did not stop:

              To stop me. I'm telling you he [the officer]
              had his lights on. He wanted to stop me. I
              wanted to get back to Fort Dix and make as big
              of a scene as possible so Fort Dix knew and
              the [S]tate [P]olice were there that they knew
              they were protected and there were people
              protecting them. I wasn't trying to harm
              anybody. I wasn't driving erratically. I
              slowed down and made sure all vehicles were
              clear of my path. I knew with the police
              officer's lights on behind me with his siren
              going that any vehicles in any intersections
              would slow down because there was an emergency
              vehicle approaching.

              [(Emphasis added).]

      The Pretrial Proceedings

      Following this incident, defendant was charged with second-

degree eluding.      Defendant did not challenge through his counsel

the legality of the motor vehicle stop.                   Instead, the pretrial

proceedings focused on defendant's competency to stand trial.

      At defendant's first court appearance on February 3, 2014,

the   judge    attempted   to    set   bail,       but   defendant     insisted    on

discussing     the   merits     of   the    case.        The   bail   decision    was

consequently delayed to the following day.

      The next day, the judge again attempted to ask defendant if

he understood the charges.                 After   hearing some ramblings by

defendant about inmates at Guantanamo Bay, the judge set bail.


                                           7                                A-5526-14T1
The judge also required defendant to be held, pending a court-

ordered psychiatric evaluation.

     The record on appeal does not include a copy of the initial

psychiatric evaluation.          However, later reports indicate that

defendant   underwent     that    initial   court-ordered    screening      on

February 14, 2014.

     Based upon observations that he was "confused, agitated, and

disorganized," defendant was civilly committed temporarily to a

hospital for psychiatric treatment.         During that brief commitment,

defendant was medicated with Depakote and Haldol, and his condition

improved.     At some point not specified in the record, medical

personnel deemed defendant suitable for discharge, and he was

released from the hospital on February 24, 2014.           Because his bail

had been posted, he was released into the community.           He lived at

home until the time of trial.

     In September 2014, the trial court conducted a status hearing

to address the State's plea offer and also to discuss defense

counsel's motion for a competency hearing.           With respect to the

second-degree eluding offense, which exposed defendant to a five-

to-ten-year    custodial    sentence,       the   State    offered   him     a

noncustodial   sentence    within    the    third-degree    range,   with    a

mandatory six-month loss of driver's license.              Defense counsel



                                      8                              A-5526-14T1
advised the court that he had discussed the State's offer with

defendant "many, many times," and that the client had rejected it.

      Defense     counsel    requested       the    court   to   order      a     second

competency evaluation to supplement the results of the February

2014 evaluation.      Counsel argued that the initial evaluation was

not   a   "full   blown     competency    evaluation,"         since   it       did   not

explicitly confirm that defendant understood the judge's role in

the trial and his own role as an attorney.              Without objection from

the State, the court ordered the second evaluation.

      Dr. Paul's Competency Evaluation

      The    second    evaluation        was       performed     by    a    licensed

psychologist, Dr. Peter D. Paul, who was with defendant for an

hour on October 7, 2014.         Dr. Paul issued his written report of

that session on October 31, 2014.              As part of the evaluation, Dr.

Paul reviewed defendant's medical and criminal records.

      Defendant disclosed to Dr. Paul that he had a history of

mental illness.       That history stemmed from a childhood accident

in which he was "hit by a bus while riding a motorcycle, causing

him to crash head first into a telephone pole."

      Dr. Paul noted in his report that defendant showed he was

aware that the court had ordered him to be evaluated, and that he

understood that the evaluation could not be used as evidence

against him in the criminal case itself but only to determine his

                                         9                                       A-5526-14T1
competency. The doctor stated that defendant was "extremely verbal

and tended to go off on tangents, but was generally cooperative

with being interviewed[.]"         Defendant disclosed to Dr. Paul the

medication     that   he   was   taking.     He   denied   experiencing      any

hallucinations.       Dr. Paul specifically noted in this regard that

defendant "did not display a disturbance in his thinking."

       Dr. Paul found defendant "initially irritable," but noted

that as the interview progressed, he complied with questions.                Dr.

Paul   found   that   defendant's    "mood    appeared     to   be   relatively

stable."     With respect to defendant's cognitive skills, Dr. Paul

observed that his thinking was "logical and clear," and that he

could easily recall recent as well as more distant memories.

Although defendant was prone to go off on tangents, Dr. Paul

nonetheless found he was "fully alert."

       On the subject of his pending criminal case, defendant told

Dr. Paul that he had not accepted the State's plea offer because

"he would be set up to fail [probation]" inasmuch as he would not

be able to get to the Probation Office in New Brunswick by mass

transit.     Defendant did admit to Dr. Paul that he "got a little

upset in court" when his attorney had encouraged him to accept the

plea offer.

       Additionally, Dr. Paul found that defendant recognized the

elements of the criminal justice system, and how those elements

                                     10                                 A-5526-14T1
related to him and his case.   The doctor noted that defendant knew

that he was charged with a crime arising from his failure "to

yield to a police vehicle."    Defendant also displayed to Dr. Paul

an understanding of the respective roles of the prosecutor, the

judge, his attorney, and the jury.            Defendant recognized that he

had the right to remain silent at trial or testify on his own

behalf.

     In sum, Dr. Paul concluded that defendant was competent to

stand trial.    The doctor recommended that defendant continue with

his medication to maintain that competency.             Dr. Paul noted that

defendant was living independently in the community while on

medication, and opined that "it is likely that [defendant] will

remain competent while he takes his current medication."

     As Dr. Paul concluded, "[a]lthough he can be irritable and

oppositional,    this   defendant        is    living   in   the   community

independently at this time.    His current mental condition is such

that he does not present a danger to himself, other persons, or

property."

     The February 25, 2015 Competency Hearing

     On the eve of trial, the trial court conducted a competency

hearing on February 25, 2015, nearly five months after the October

2014 competency evaluation performed by Dr. Paul.             At the outset

of that hearing, the judge noted that he had reviewed Dr. Paul's

                                    11                               A-5526-14T1
report.   The judge indicated that he also wanted to hear from

defense counsel and defendant himself, in order to "assure the

[c]ourt that [defendant] is still competent to stand trial."

     Defendant's trial counsel addressed the court first.           He

stated that he had numerous phone calls and in-person encounters

with defendant since September 2014.        Counsel stated that his

"impression all along [is] that [defendant] has been competent to

deal with this matter in the sense that he's always been lucid."

The attorney confirmed that defendant understood the charges, as

well as the respective roles of the judge, the prosecutor, and the

defense attorney, and also his status in the case as the defendant.

     Although counsel acknowledged that "because of [defendant's]

emotional issues     that [he] often times gets off point," the

attorney advised the court that "I haven't had problems" bringing

his client's attention back to the trial.    The attorney maintained

that he had been able to discuss the nuances of the case with

defendant, as well as the reasoning that had led to his rejection

of the plea offer.

     The judge next     conducted a colloquy on the record with

defendant.   During this exchange, defendant frequently would veer

off-topic or discuss elements of this case, despite his attorney's

instructions to remain quiet.   However, when he was focused back

on the pertinent topics by the judge, defendant generally provided

                                12                           A-5526-14T1
coherent responses that reflected a cogent understanding of the

legal process.

      Defendant confirmed to the judge his awareness of the roles

of   the   judge,   the   prosecutor,      and    his   defense   counsel.     He

recognized that the prosecutor was "going to argue to the jury"

that he ran two red lights while a police officer was behind him.

Defendant also understood that his attorney was "going to be trying

to   defend   me,"    although   he     realistically       appreciated      that

counsel's task would be difficult because there was "videotape

showing me running two lights, although I was proceeding slowly."

Defendant further acknowledged to the judge that he knew he had a

right not to testify, although he would "rather explain to the

jury what I did [and] why I did it."

      Based on these presentations, the judge ruled that defendant

remained competent to stand trial.               The case then proceeded with

the State's evidence.

      The Course of the Trial

      At several points in the trial, the judge engaged in further

colloquy with defendant concerning his decision about testifying.

The judge advised defendant to listen to his attorney and evaluate

his decision on the subject carefully.               The judge read defendant

the instruction that would be read to the jury if he opted to

testify.    The judge further explained to defendant that his prior

                                      13                                A-5526-14T1
convictions could be considered by the jury if he chose to testify.

Defendant   asked   the   judge   if    he    could    explain   those     prior

convictions if they were admitted.             During the course of the

colloquy outside of the jury's presence, defendant made various

statements to the court that were self-inculpatory.

     The judge considered the admissibility of defendant's prior

convictions under N.J.R.E. 609 and the Sands/Brunson test.1               Before

rendering his decision on admissibility, the court adjourned for

the weekend.

     When the case resumed on March 3, 2015, the judge again

addressed   defendant's    intentions        about    testifying.    Defense

counsel informed the court that he and defendant had met on the

preceding Friday and Saturday to discuss the decision.

            THE COURT: [Defendant], have you made a
            decision about whether you will testify at
            trial?

            DEFENDANT: I’ll let my attorney ask me the
            questions and I will testify but the verdict
            is going to be based on the evidence which is
            not the accurate --

            DEFENSE COUNSEL: [Defendant], just answer the
            question.

1
  The Sands/Brunson test evaluates the "remoteness" of a
defendant's prior convictions and determines their admissibility
at trial. See State v. Brunson, 132 N.J. 377 (1993); State v.
Sands, 76 N.J. 127 (1978). But see the revised version of N.J.R.E.
609. (effective July 1, 2014). The admissibility of defendant's
prior convictions to impeach his trial testimony is not an issue
in this appeal.

                                   14                                    A-5526-14T1
           DEFENDANT: Yes, Your Honor, I’ll testify.

           THE COURT: All right.           Did   you   make   this
           decision yourself?

           DEFENDANT: Well, my attorney’s advising me to
           make this decision, Your Honor.

           THE COURT: Have you been put under any
           pressure, made any promises or threatened into
           testifying?

           DEFENDANT: No. I was [not] threatened or I
           haven’t threatened anybody else. I just see
           the way the case has been.

           THE COURT: Well, the case isn’t over yet. Has
           your attorney answered all the questions you
           may have had about this?

           DEFENDANT: I suppose.

     Defendant ultimately testified, providing his account of the

events as we have previously described.            At no point during the

trial did defense counsel raise defendant's competency as an issue

to be considered again by the court.

     The Verdict and Sentencing

     Following deliberations, the jury found defendant guilty of

second-degree eluding, the sole count in the indictment.               Defense

counsel   moved   for   a   new   trial,   arguing     that   the    court   had

improperly admitted evidence of defendant's prior convictions.

That post-trial motion made no mention of defendant's competency.

The court denied the motion, leaving the jury verdict intact.


                                     15                                 A-5526-14T1
     At sentencing, the judge reviewed a presentence report that

provided details of defendant's mental health history. In addition

to that past history, the report indicated that defendant had

recently experienced suicidal thoughts since the time of the jury's

guilty verdict.

     The judge noted in his sentencing analysis that he had

considered defendant's childhood head injury.      The judge also

considered defendant's later diagnoses of schizophrenia, bipolar

paranoia, and delusion.

     The judge identified three applicable aggravating factors

that bore upon the sentence: (3) "the risk that defendant will

commit another offense," N.J.S.A. 2C:44-1(a)(3), (6) "the extent

of the defendant's prior criminal record and the seriousness of

the offenses of which he has been convicted," N.J.S.A. 2C:44-

1(a)(6), and (9) "the need for deterring the defendant and others

from violating the law," N.J.S.A. 2C:44-1(a)(9).     Additionally,

the judge found three pertinent mitigating factors: (2) "the

defendant did not contemplate that his conduct would cause or

threaten serious harm," N.J.S.A. 2C:44-1(b)(2), (4) "there were

substantial grounds tending to excuse or justify the defendant's

conduct, though failing to establish a defense," 2C:44-1(b)(4),

and (7) "the defendant has no history of prior delinquency or

criminal activity or has led a law-abiding life for a substantial

                               16                           A-5526-14T1
period of time before the commission of the present offense,"

N.J.S.A. 2C:44-1(b)(7).

       On balance, the judge concluded that the "mitigating factors

substantially    outweigh    the    aggravating     factors   and   there      are

compelling reasons to downgrade the defendant's sentence."                       In

this   regard,   the   judge    noted     that   "the    punitive   effect       of

imprisonment for this particular defendant is disproportionate to

the    offense   committed     because     of    [his]     mental   health[.]"

Accordingly, the judge downgraded the eluding conviction to a

third-degree     offense.      As   we   have    already   noted,   the     judge

sentenced defendant to a three-year flat prison term, with no

parole disqualifier. The judge also ordered that defendant receive

further mental health treatment.

       This appeal ensued.      We now discuss, in turn, defendant's

points regarding (1) competency and (2) the sentence.

                                     II.

       Defendant's primary point on appeal is that the trial court,

sua sponte, was obligated to order an updated competency evaluation

immediately before or during the trial because of his display of

aberrational behavior in the courtroom.                 He contends that the

assertions of his trial attorney at the pretrial competency hearing

about his capabilities should be afforded minimal weight because

an attorney generally lacks the diagnostic skill of a mental health

                                     17                                   A-5526-14T1
professional.      He further contends that Dr. Paul's report had

essentially become stale by the time of trial.             He maintains that

the   psychologist's     expert   opinion      vouching    for   defendant's

competency   was    predicated    on    an   unsupported    assumption    that

defendant would continue to take his medications.                He contends

that the aberrational behavior he displayed in the courtroom should

have raised a serious concern that he was no longer on those

medications when the trial proceeded.

      Several fundamental principles guide our analysis of this

issue.   The Legislature has codified the common law standards for

mental competence in N.J.S.A. 2C:4-4.            The statute prohibits a

person "who lacks capacity to understand the proceedings against

him or to assist in his own defense" from being "tried, convicted

or sentenced for the commission of an offense so long as such

incapacity endures."       N.J.S.A. 2C:4-4(a).       The statute further

requires the defendant to be the "mentally competent to stand

trial on criminal charges."       N.J.S.A. 2C:4-4(b)(1).         To determine

whether a defendant has the requisite mental competency, it must

be shown 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;

                                       18                             A-5526-14T1
            (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,   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.

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

     Last year, our Supreme Court canvassed the procedural aspects

that relate to such competency determinations in State v. Gorthy,

226 N.J. 516, 530 (2016).     The Court noted in Gorthy that, when

deciding if a criminal defendant is competent, a trial judge

retains the authority to decide whether or not to hold a competency

hearing, as there are "no fixed or immutable signs which invariably

indicate the need for further inquiry to determine fitness to

proceed."    Ibid. (quoting Drope v. Missouri, 420 U.S. 162, 180,

95 S. Ct. 896, 908, 43 L. Ed. 2d 103, 118 (1975)).



                                 19                          A-5526-14T1
      When a competency hearing is conducted, the State has the

burden to prove by a preponderance of evidence that the defendant's

mental condition "does not render him or her incompetent to stand

trial."      Ibid.       The    trial    court     generally      should    rely    on

evaluations by one or more mental health professionals, who opine

on   the   defendant's    condition       and     ability   to    "understand      and

participate in the legal process."               Id. at 530-31.       The State does

not have to prove that the defendant "is capable of formulating a

legal strategy" or has the ability to "communicate with counsel

using complex language."         Id. at 531.        The focus instead turns on

the extent the defendant's mental condition "precludes meaningful

interaction with his or her attorney."               Id. at 532.

      A court must make a competency determination based upon

sufficient     supporting            evidence.         Defendant's         arguments

substantially rely in this regard upon our opinion in State v.

Purnell, 394 N.J. Super. 28, 50 (App. Div. 2007).                     In Purnell, a

defendant    challenged        his     conviction     based      on   incompetency,

asserting that the trial judge had improperly rejected his trial

counsel's repeated assertions throughout the proceedings that his

client was not competent to stand trial.              Id. at 49. The defendant

noted on appeal that he had not understood the significant jail

time he faced, despite his family members strongly encouraging him

to accept a plea offer.          Id. at 51.        He also referred to various

                                         20                                  A-5526-14T1
rambling incoherent responses he had provided to questions from

the trial court.         Id. at 52.

     One year before the trial in Purnell, the court had ordered

a competency evaluation of defendant by a clinical psychiatrist.

However,   the     defendant      had   refused       to   cooperate    during    that

evaluation.       Id. at 38-39.         Hence, the psychiatrist could only

offer an "educated guess" as to the defendant's competency, which

the court found was "inconsistent" about whether he could stand

trial.    Id. at 49.

     Based on the expert report, defense counsel's representations

to the court, and a brief voir dire of defendant conducted in

court,   the     trial    judge   concluded      defendant      was    competent    to

proceed.     Ibid.

     On appeal, we overturned Purnell's conviction, finding that

the State had failed to meet its evidential burden of competency.

Id. at 50.        We acknowledged that the defendant's refusal to

cooperate hindered a meaningful review of his competence, but

without sufficient evidence the court could not find him competent.

Id. at 52.     We indicated that, in the circumstances presented, the

trial court or prosecutor should have procured additional experts

to evaluate the defendant.              Ibid.     We further noted the trial

judge    could    have    attempted      on     the    record   to     question    the

defendant's understanding of the factors in N.J.S.A. 2C:4-4, or

                                         21                                  A-5526-14T1
ordered further review of his past medical and school records.

Id. at 52-53.         Because the State in Purnell did not provide

evidence to rebut the bona fide question of the defendant's

competency that had been presented, we reversed his conviction.

Id. at 53.

      Defendant also relies upon State v. Lambert, 275 N.J. Super.

125, 131 (App. Div. 1994).       In Lambert, at the outset of trial of

the     defendant's    drug    distribution    charge,    defense   counsel

requested an adjournment to enable a psychiatric evaluation of his

client.    Id. at 130.    Months earlier, the defendant had told his

counsel that he had no history of mental illness.          Ibid.    However,

eight days before trial, defense counsel learned that the defendant

in fact took psychiatric medication, had been placed on a suicide

watch     at   prison,   and    had   been    diagnosed   as    a   paranoid

schizophrenic.     Id. at 131.

      Despite the fact that the defendant's trial counsel in Lambert

informed the court of these developments, and expressed concern

about his client's competency to stand trial, the judge denied the

request to adjourn the case for a psychiatric evaluation.              Ibid.

A later psychiatric evaluation at the defendant's pre-sentencing

hearing concluded that he was competent.          Id. at 132.

      On appeal in Lambert, we reversed, finding that because

defense counsel had raised a bona fide doubt as to the defendant's

                                      22                             A-5526-14T1
competency,    the   trial   court   was   required   to    conduct   further

inquiry. Id. at 131-32.      We noted that the trial attorney was "in

a far better position than the trial judge to assay the salient

facts concerning the defendant's ability to stand trial."              Id. at

131 (quoting State v. Lucas, 30 N.J. 37, 74 (1959)).                  We also

ruled that the later pre-sentencing psychiatric determination of

competency did not resolve the issue, because the trial court had

too readily dismissed the trial counsel's expressed bona fide

concerns about defendant's competency during the trial phase.

Lambert, supra, 275 N.J. Super. at 133.

     The circumstances here are not comparable to those in Purnell

and Lambert.    The trial judge responsibly ordered two successive

professional evaluations before the trial, the most recent one by

Dr. Paul.      In addition, the judge engaged in a voir dire of

defendant right before the trial began and witnesses were sworn.

Moreover, defendant's trial counsel clearly attested to his own

positive impressions of his client's competency to stand trial and

his ability to assist counsel in the case.                 This is markedly

distinguishable from the situation in Purnell, in which defense

counsel repeatedly pressed the competency concerns with the court,

which the court ignored.

     The present case is also markedly different from Lambert, in

that this defendant's mental health history was not hidden until

                                     23                               A-5526-14T1
the eve of trial but instead well known and the subject of two

pretrial competency evaluations.             The judge acted with reasonable

diligence     and    vigilance    by    ordering      two       such   evaluations,

considering their results, and questioning both defendant and his

counsel on the record to confirm defendant's ability to proceed.

The judge also made multiple inquiries into defendant's decision

to testify.

      Defendant     contends     that   his   display      of    erratic   behavior

during the trial phase should have signaled to the court that he

was no longer on medication, and therefore the court should have

ordered a third competency evaluation.             He also points to certain

post-trial information to support this argument.                   In particular,

he points to a handwritten letter he wrote to the judge after his

conviction and before sentencing, which states that he had been

"off [his] medications for a year and a half and was in a very

confused, paranoid, and manic state."              Defendant also highlights

psychiatric reports attached to his sentencing brief indicating

he has a "[l]ong history of medication noncompliance at times . . .

due to financial problems."

      Although we appreciate that an individual's competency can

be a dynamic and complicated subject, we are unpersuaded that the

trial judge in this case – based on what had been presented to him

and   what   steps    he   had   already      taken   to    assure     defendant's

                                        24                                  A-5526-14T1
competency – had any mandatory obligation to take additional

measures.      To be sure, the trial transcripts show that defendant

often rambled, and his explanation of why he did not stop his car

when    the   police   officer   signaled     for   him   to   do   so     is   not

compelling.     Even so, defendant ultimately was focused away from

tangents.     His decision to testify, by all outward manifestations,

had been repeatedly discussed with his counsel and the court and

he nevertheless exercised his right to present his account to the

jury.   In Gorthy, supra, 226 N.J. at 536, the Court recognized the

importance of providing a defendant with mental health issues with

the autonomy to make that choice.

       Notably, defendant's trial counsel here endeavored during

summations to use defendant's seemingly implausible narrative to

his advantage, urging the jurors to take into account that his

client "does not have the precise thinking of an accountant, a

bookkeeper,     [or]   a    traffic     controller."      "His      mind     works

differently,"     counsel     argued,      defendant   "says     contradictory

things."      Counsel advocated that, under the law, a person is not

guilty of eluding unless the State proves that the defendant

"know[s] that the officer wants to pull over, and that was not the

case in this particular instance."

       Having thus unsuccessfully attempted to gain an acquittal by

such arguments designed to garner the jurors' understanding of his

                                      25                                   A-5526-14T1
idiosyncratic manner, defendant is not entitled to a second chance

to   gain    relief    through   a   new    argument   on   appeal   about   his

competency that was never presented to the trial judge by his

counsel.       We ascribe no nefarious motives to counsel in this

regard, as the record, by all indications, reflects that his

attorney genuinely perceived defendant to be competent to proceed,

as did Dr. Paul and the other expert who had previously examined

him.

       In a supplemental brief provided to us on our invitation

after the appellate oral argument, the assistant deputy public

defender has supplied us with citations to several cases in which

an appellate court has ordered a remand to the trial court for the

purposes      of   a   retrospective   competency      evaluation.     Such     a

retrospective evaluation could attempt to reconstruct whether a

defendant had been competent at the earlier time when he was tried.

We discern no reason to compel such a retrospective assessment in

this case.

       The only reported New Jersey decision cited by the assistant

deputy public defender in which such a retrospective evaluation

was ordered is State v. Latif, 134 N.J. Super. 441, 447 (App. Div.

1975).      That case is not on point here.       In Latif, the trial court

notably had already granted a new trial because the defendant had

been incompetent at the time of his initial conviction.                 Id. at

                                       26                               A-5526-14T1
444.     Before the new trial began, the State's expert opined that

the defendant was likely not competent to stand trial whereas the

defense expert reached a contradictory finding and opined that he

lacked competency.       Id. at 444-45.        Although defense counsel and

the State both agreed to an updated competency hearing, the court

declined to conduct one because the defendant had expressed his

personal desire to proceed to trial.            Id. at 445-46.      He then was

found guilty by the second jury.             Id. at 443.

       Given   those     discrete    circumstances,        we     reversed   the

conviction     in   Latif,    because    the    competing    expert    opinions

presented to the trial court required the trial court to conduct

further inquiry.       Id. at 447.      We consequently remanded the case

to the trial court to address whether the evidence was sufficient

to make a competency evaluation.             Ibid.

       The situation here is not akin to that in Latif.                The only

expert     evaluations       of   defendant's        competency    consistently

supported his ability to stand trial, as contrasted with the

opposing expert reports that were presented to the court in Latif.

Although defendant has been treated in the past for mental illness,

there is no indication in this record, unlike in Latif, that he

was previously declared incompetent to stand trial.                   Moreover,

defendant's trial counsel here vouched for his client's competency



                                        27                              A-5526-14T1
and did not request an updated hearing.   Nor did the prosecutor,

as in Latif.

     The assistant deputy public defender has intimated that her

office has come into possession of additional information that may

show that defendant was not, in fact, on his medication as of the

time of trial.     There was no timely motion to supplement the

appellate record with such materials during the briefing of this

case. Moreover, even if such medical records do exist and document

that defendant was non-compliant with his medications as of the

time of trial, no such information was supplied to the court during

the trial.     We can hardly fault the judge for not considering

information that was never provided to him.   That said, we do not

foreclose defendant from seeking relief in the trial court with

alleged newly-discovered evidence in an appropriate motion under

Rule 3:20-1, or in a future petition for post-conviction relief

under Rule 3:22-1.

     Lastly, we reject defendant's argument that his incompetence

was demonstrated by self-inculpatory statements he made to the

court during trial. He did not make these statements in the jury's

presence.    We are unpersuaded that the statements required the

court to delve further into his competency without a specific

request from his counsel in these circumstances.



                               28                           A-5526-14T1
      In sum, we conclude that the trial court had no sua sponte

obligation    to   order   an   updated      competency    evaluation   in    the

circumstances      presented.     The     judge    acted   reasonably   and    in

substantial    reliance    upon   the     unrefuted     expert   reports,     the

observations and attestations of defendant's trial counsel, and

defendant's own insistence on proceeding, in a manner that his

attorney attempted to use to strategic advantage with the jurors

in summation.      The conviction is accordingly affirmed.

                                     III.

      Defendant separately argues that his sentence was excessive.

This argument requires little comment.             The trial judge reasonably

took into account defendant's mental health history in downgrading

his   second-degree     conviction      to    a   third-degree   offense      for

sentencing purposes.       We discern no basis to disturb the judge's

discretionary weighing of the aggravating and mitigating factors.

State v. Roth, 95 N.J. 334 (1984).                As the Court instructed in

State v. Bieniek, 200 N.J. 601, 612 (2010), when the trial court

follows "the sentencing principles set forth in the Code and

defined in our case law, its discretion should be immune from

second-guessing."

      Defendant relies on State v. Jarbath, 114 N.J. 394 (1989) to

argue that a sentencing judge should decline to impose a custodial

sentence when there is a "serious injustice of imprisonment" in

                                     29                                 A-5526-14T1
circumstances that clearly outweigh the need for deterrence.             Id.

at 409.     There, the Supreme Court found a custodial sentence

improper where the trial court did not downgrade the second-degree

manslaughter sentence of a developmentally disabled defendant,

despite finding that the aggravating factors were only "marginally

applicable."      Id. at 401-02.    Additionally, the Court determined

that because the defendant's mental condition rendered her unable

to endure prison life and caused her to experience ongoing daily

abuse by other inmates prior to sentencing, the "serious injustice

of imprisonment" outweighed the importance of general deterrence

of the crime.     Id. at 409.

     The present circumstances are different.           First, the trial

judge   here   did   downgrade   defendant's   sentence,   based   on    his

analysis of the aggravating and mitigating factors, unlike the

court in Jarbath, which declined to do so.              Further, although

defendant   has    allegedly    experienced   sexual   abuse   while   being

imprisoned in the past, the record does not contain any evidence

of recent ongoing abuse, as was the case in Jarbath.             The judge

here reasonably analyzed the aggravating and mitigating factors

as applied to this defendant, and found no demonstrated "serious

injustice" was present.

     In sum, the judge at sentencing fairly took into account

defendant's mitigating circumstances, particularly in downgrading

                                    30                             A-5526-14T1
the offense despite the State's arguments for a longer second-

degree term.   We decline to "second-guess" the judge's sentencing

decision, and the custodial term he imposed.   Bieniek, supra, 200

N.J. at 612.

    Affirmed.




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