                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2631-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

C.M.,

     Defendant-Appellant.
_________________________

                   Submitted November 14, 2018 – Decided April 26, 2019

                   Before Judges Ostrer and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 85-08-0817.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Claude Caroline Heffron, Assistant Deputy
                   Public Defender, of counsel and on the briefs).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erica M. Bertuzzi, Assistant Prosecutor, on
                   the brief).

PER CURIAM
      The trial court denied C.M.'s motion for release from civil commitment

after a periodic Krol hearing. See State v. Krol, 68 N.J. 236 (1975). Because

the trial judge did not conduct the requisite fact-finding, apparently failed to

consider the full record, and shifted the burden to C.M., we remand for

reconsideration of the entire record under the appropriate legal standard.

                                       I.

      C.M., who has schizoaffective disorder, major depressive disorder, and

borderline intellectual functioning, stabbed his mother to death in 1983 while

under sway of auditory hallucinations.       Though he was on antipsychotic

medication following a suicide attempt and hospitalization a year earlier, he

reportedly did not comply with his medication regimen and did not inform his

mother when he ran out of medication. He was indicted in August 1985, found

not guilty by reason of insanity two years later, and committed to a state

psychiatric hospital. He was transferred to Ancora Psychiatric Hospital in June

1993, where he has remained for the last twenty-five years.

      C.M. has made steady progress at Ancora.          He apparently has not

attempted violence against himself or others since 1983.1 He has spent a large


1
  The record reflects that C.M. attempted suicide by swallowing prescription
medication, bleach, razor blades, and rat poison, but these attempts apparently
occurred in 1983 or earlier.
                                                                         A-2631-17T3
                                        2
portion of his time on Level III supervision, the second least restrictive status

for confined patients. See N.J.A.C. 10:36-1.3 to -1.8 (describing the four levels

of supervision and procedures for determining the level appropriate for a

committed patient).

      Generally, C.M.'s understanding of his illness and dangerousness when in

the throes of psychosis has improved. Earlier in his commitment, C.M. clearly

lacked insight into his condition – prompting his treatment team to administer

his medication by injection to avoid his discarding capsules. But since 2007, he

has evinced, at least at times, a deeper realization of his need for medication.

He stated in 2007 that he would "likely be dead" had he not been hospitalized .

In 2008, he was reported "free of assaultive behaviors." His progres s reports

state that he handles conflicts with peers "quite well" and that he participated

successfully in several supervised trips out of the hospital.       He has had

"excellent attendance" at his treatment programs and successfully completed a

substance abuse program in late 2006.

      Nonetheless, in 2007, staff became concerned that while C.M. "appeared

to say the right thing about medications," when probed further he lacked real

insight into his illness. They continued to medicate him in liquid form. In 2009,




                                                                         A-2631-17T3
                                        3
after staff discovered he had been vomiting one oral medication, they confronted

and counseled him about complying with his medication.

      Occasionally over the years, C.M. has also demonstrated poor judgment

by possessing or selling coffee or cigarettes, which are contraband in Ancora.

He was caught or suspected of contraband infractions four times between 2004

and 2010.   After his first infraction, he was placed under "periodic visual

observation," apparently for a few months; in late 2004 he was reinstated to

Level III status with the approval of the Special Status Patient Review

Committee (SSPRC), an internal reviewing body at Ancora.          See N.J.A.C.

10:36-2.2. The SSPRC is comprised of the hospital's Clinical Director or Chief

of Psychiatry, and directors of psychology, and nursing, rehabilitation, and

social services. Ibid. It makes recommendations based on its own independent

review of patient records and the treatment team's conclusions. See N.J.A.C.

10:36-2.3(e).

      In January 2010, C.M. refused a request to transport contraband coffee.

The SSPRC recommended C.M. for Level IV supervision, permitting him more

independence and possible passes to visit his sister for a day at a time. See

N.J.A.C. 10:36-1.8(a) ("Patients at Level of Supervision IV are those who pose

no or minimal risk of harm to self, others or property and who may be discharged


                                                                        A-2631-17T3
                                       4
upon finalization of after-care and housing plans.").           The SSPRC also

recommended that C.M. participate in a twice-weekly "community partial care

program," and that the trial court authorize his discharge planning subject to the

approval of two independent psychiatrists. See N.J.A.C. 10:36-1.8(d) ("Most

often, community-based programs and activities (for example, transitional

programs, community day programs, community trips), as well as larger group

activities, shall be part of the individual's overall program at Level IV.").

      However, at his Krol hearing in 2010, the trial judge expressed concern

about C.M. vomiting his medication and ordered he remain at Ancora. Upon

finding coffee in C.M.'s possession in May 2010, staff became further concerned

about the appropriateness of discharge and downgraded him to Level I

supervision, the most restrictive status, reinstating him to Level III

approximately a month later. C.M.'s doctor opined that C.M.'s low intellectual

functioning made "it relatively easy for him to be exploited and used as a mule

to carry cigarettes and coffee."

      Yet, C.M. improved; his progress notes state that, as of June 2010, he was

no longer delusional. From mid-2010 through 2012, C.M.'s treatment team

reported he was increasingly "[i]nsightful into his index offense and the role

psychiatric illness played." In his own words, C.M. regularly acknowledged his


                                                                            A-2631-17T3
                                         5
medication kept him from "being suicidal or homicidal"; that his "diagnosis is

paranoid schizophrenia and I have to be on medication for life"; and that he

"must take [medication] for the rest of my life, otherwise I might hurt others and

I don't want that to happen no more. I want to get on with my life." C.M. also

recognized that his lapse in taking his medication had caused him to kill his

mother; he described the incident and his state of mind in detail to his treating

psychiatrist.

      Noting his improvement, C.M.'s treatment team referred him to the

SSPRC in October 2011 to evaluate his readiness for a group home. The SSPRC

referred C.M.'s case to the Clinical Assessment Review Panel (CARP), an

independent central reviewing committee, which approved "discharge planning

to a 24/7 supervised setting" and recommended "securing evaluations of two

independent psychiatrists per court order" and seeking the court's permission for

off-site visits "as part of the discharge planning."

      C.M.'s progress notes from 2012 document both a steady compliance with

his medication regimen and his psychiatrist's efforts to find him a suitable group

home. In January 2012, C.M. was "[d]oing very well" and was "[i]nsightful and

compliant with medications [and] programming." In June 2012, his psychiatrist

noted he had contacted a group home, and that if the home would accept C.M.,


                                                                          A-2631-17T3
                                         6
Ancora would begin the discharge process. However, while the group home

provisionally stated C.M. met its criteria, it had no vacancy. Approaching the

end of 2012, C.M. continued to acknowledge his need for medication.

      However, in March 2013, C.M.'s treatment team learned from his peer that

C.M. "has all along been serving as a mule delivering coffee on to the unit." The

next month, he was caught with coffee and cigarettes, resulting in his placement

under Level II supervision. While C.M. showed remorse, admitting his actions

"showed poor judgment," his treatment team was concerned about his

"compliance under minimal supervision." Though he continued to comply with

his medication and treatment programs, his team deemed him unready for

discharge, insisting on a twelve-month period without reportable incident as a

prerequisite for discharge planning. C.M. again caused concern when staff

learned in October 2014 that he had been smoking for the previous three weeks

against his unit's policy, for which he was counseled and placed under closer

monitoring.

      After meeting with C.M., Ancora's addiction staff informed C.M.'s

treating psychiatrist that C.M. was attempting to "sabotage[] discharge plans"

through his infractions because he had become "institutionalized and may

subconsciously not be able to cope with discharge planning." His progress notes


                                                                         A-2631-17T3
                                       7
from May to September 2015 conclude with the following observation of C.M.'s

overall progress:

            The client has remained for the most part without overt
            symptoms of his mental illness. In other words, no
            overt psychosis, denies perceptual disturbance nor
            issues with medication adherence. However he still has
            baseline issues with executive dysfunction . . . [which]
            can manifest themselves in a myriad of ways but in
            particular . . . poor ability to recognize the future
            consequences of action today and the ability to curtail
            impulses.

      As of July 2015, C.M.'s treating psychiatrist was Dr. Allen Y. Masry, who

submitted a detailed report to the trial court in September 2015, describing

C.M.'s illness, murder of his mother, progress and setbacks throughout his time

at Ancora. Dr. Masry reported the treatment team's consensus that C.M. must

demonstrate twelve incident-free months before beginning discharge planning.

"When this happens, he would be re-submitted to the SSPRC/CARP and court

approval sought to begin the process of seeking a group home . . . and consulting

with two independent psychiatrists . . . ."

      By May 2017, the treatment team again recommended planning for C.M.'s

discharge to CODI, a group home. Dr. Masry submitted another report to the

trial court, stating that "for at least the last 12 years no issues with med non

adherence and since 1983 no issues with suicide attempt." The report explained


                                                                         A-2631-17T3
                                         8
that CODI had around-the-clock supervision and mandatory curfews, with an

average of one staff member per every five clients, but that staff could not

technically keep clients in the home against their will. Dr. Masry assured the

court, "The staff[] are trained mental health professionals who have extensive

experience in how to encourage a client to stay," and "should a client not return

or still choose to leave they would immediately inform authorities."

      Dr. Masry also reported that CODI practices "observed medication

administration." This meant that staff members administer a client's medication

for the first thirty days after admission to CODI; thereafter, the patient is

supplied with a week's worth of medication; a supervisor observes the client

place the medication in his pillbox and checks the pillbox at week's end.

However, staff would continue to administer C.M.'s anti-psychotic medication

intravenously every month. CODI clients attend a day program off premises

from morning until late afternoon, then return to the home, where they

participate in group and individual therapy. The report reiterated that C.M. "is

ready for discharge planning. The entire treatment team believes patient has

reached maximum benefit with hospitalization." Dr. Masry also reported that

the SSPRC and CARP had both approved the discharge.




                                                                         A-2631-17T3
                                       9
      In September 2017, C.M.'s new psychiatrist, Dr. Shujaat Nathani – who

succeeded Dr. Masry – submitted a report recommending discharge to CODI.

He recounted staff reports from the group home where C.M. had visited on day

passes during June 2017.      The group home staff reported C.M. "was very

pleasant," told staff members he "was looking forward to living in the

community," while noting "he was nervous but willing to give it a chance." They

reported C.M. met his roommate "and appeared to be very comfortable with him.

They talked and shared stories about themselves."

      On C.M.'s second visit, the group home staff reported, he seemed more

relaxed and socialized with residents at the home. He appeared "fully oriented,"

showed "logical thinking and clear and appropriate thought content" and

"described willingness to adhere to medication orders and program guidelines."

C.M. also communicated openly about his experience in Ancora "and the crime

he committed to be hospitalized." Dr. Nathani followed up with a second report

in December 2017, which reproduced Dr. Masry's May 2017 report nearly

verbatim and recommended discharge to CODI. Neither of Dr. Nathani's reports

included C.M.'s clinical history or any details of his past lapses and future risks

for non-compliance with medication.




                                                                           A-2631-17T3
                                       10
      The sole witness at the Krol hearing in December 2017, Dr. Nathani

testified about C.M.'s progress, the conditions of CODI, and C.M.'s past

infractions. However, while he stated he had reviewed Dr. Masry's reports, Dr.

Nathani could not identify the crime for which C.M. had been initially

committed. Though the State's counsel pressed him, he could not recall – until

counsel reminded him – that C.M. had murdered his own mother.

      Although the State had called Dr. Nathani as a witness, at the close of his

testimony, the assistant prosecutor renewed a request that the court appoint an

independent psychiatrist to examine C.M. The court did not rule on the renewed

request. In summation, the prosecutor challenged Dr. Nathani's opinion, and

objected to C.M.'s discharge, contending the community facility was "not secure

enough to ensure the safety of the community" and C.M. lacked prior experience

in his own medication management.

      C.M.'s attorney urged the court to approve C.M.'s discharge. Counsel

argued, based on the opinions of both Dr. Masry and Dr. Nathani, that C.M. was

no longer a danger to himself or others, noting the absence of violent conduct in

recent years, and the persistence in his system of his medication even if he

temporarily stopped taking it.




                                                                         A-2631-17T3
                                      11
      In his oral decision, the trial judge announced that he found Dr. Nathani's

testimony incredible and unhelpful, since the doctor could not recall C.M.'s

initial offense and the court could find "no basis for . . . his opinion that's been

put into the record."2 The trial judge therefore concluded that "the status quo

will remain in effect." The court issued a written order in January 2018, stating

that it found C.M. remained a danger to himself and others and requiring his

continued hospitalization, while ordering "discharge planning at the

recommendation of Dr. Nathani and the team, which shall include specific

details as to placement, therapy, and medications."

                                        II.

      Aside from questions of law, which we review de novo, Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), our scope

of review of a commitment or recommitment order is "extremely narrow." State

v. Fields, 77 N.J. 282, 311 (1978). We accord "the utmost deference . . . [to] the

reviewing judge's determination as to the appropriate accommodation of the

competing interests of individual liberty and societal safety in the particular

case." Ibid. We have the "responsibility to canvass the record inclusive of the


2
  Though the trial court did not elaborate on this statement, it apparently meant
to highlight the lack of detail in Dr. Nathani's written report, which omitted
C.M.'s clinical history and risks.
                                                                            A-2631-17T3
                                        12
expert testimony to determine whether the findings made by the trial judge were

clearly erroneous." In re J.M.B., 395 N.J. Super. 69, 90 (App. Div.), aff'd, 197

N.J. 563 (2009). We will modify a commitment order "only if the record reveals

a clear mistake." In re D.C., 146 N.J. 31, 58 (1996).

      Nonetheless, we will overturn a ruling that is "so wholly insupportable as

to result in a denial of justice," Greenfield v. Dusseault, 60 N.J. Super. 436, 444

(App. Div.), aff'd o.b. 33 N.J. 78 (1960), or is based on an "obvious overlooking

or underevaluation of crucial evidence," State v. Johnson, 42 N.J. 146, 162

(1964). We will also reverse where the trial court fails to explain the reasons

for its decision. See Curtis v. Finnean, 83 N.J. 563, 569-70 (1980); R. 1:7-4(a).

      The State may commit individuals found not guilty by reason of insanity

(NGI) so long as they pose a danger to themselves or others. In re W.K., 159

N.J. 1, 2 (1999). Commitment aims not to penalize but "to protect society

against individuals who, through no culpable fault of their own, pose a threat to

public safety." Krol, 68 N.J. at 246. A trial court determining the propriety of

commitment must evaluate whether the NGI acquittee poses "a substantial risk

of dangerous conduct within the reasonably foreseeable future," considering

both the likelihood and seriousness of dangerous conduct.             Id. at 260.

Dangerousness to oneself or others includes risk of death, serious bodily injury,


                                                                           A-2631-17T3
                                       13
or serious property damage. N.J.S.A. 30:4-27.2(h), (i). The State does not

satisfy its burden by raising the mere possibility that an individual might become

dangerous at some future point. Krol, 68 N.J. at 260.

      Once committed, NGI acquittees have a right to periodic reviews – known

as Krol hearings – generally "under the same standards as those applied to civil

commitments" to determine the ongoing need to commit. In re M.M., 377 N.J.

Super. 71, 76 (App. Div. 2005), aff'd o.b., 186 N.J. 430 (2006). "[T]he [S]tate

must bear the burden of proving the necessity of recommitment, just as it bears

the burden of proving the necessity for commitment." Fields, 77 N.J. at 300

(quoting Fasulo v. Arafeh, 378 A.2d 553, 557 (Conn. 1977)). However, one

important exception is "that the burden of establishing the need for continued

commitment is by a preponderance of the evidence, whereas in a civil

commitment proceeding it is by clear and convincing evidence." W.K., 159 N.J.

at 4; N.J.S.A. 2C:4-8(b)(3) (establishing preponderance-of-the-evidence

standard of proof).

      The regularity of Krol hearings is designed to facilitate continuous

reevaluation of the status quo. Matter of Newsome, 176 N.J. Super. 511, 516

(App. Div. 1980). A trial court must therefore draw factual conclusions about a

committee's current degree of dangerousness, based on "history, recent behavior


                                                                          A-2631-17T3
                                       14
and any recent act, threat or serious psychiatric deterioration." N.J.S.A. 30:4-

27.2(h). While the court may "give substantial weight" to past crimes and their

"relationship to [a committee's] present mental condition," the court's ultimate

task is "prediction of [the committee]'s future conduct rather than mere

characterization of his [or her] past conduct." Krol, 68 N.J. at 260-61. A

committee's "criminal act, while certainly sufficient to give probable cause to

inquire into whether he is dangerous, does not, in and of itself, warrant the

inference that he presently poses a significant threat of harm, either to himself

or to others." Id. at 247.

      A trial court determining dangerousness should consider expert opinion.

Id. at 261. However, it should not entirely defer to psychiatric assessments,

because the issue of dangerousness, as a factor in the "delicate balancing of

society's interest in protection from harmful conduct against the individual's

interest in personal liberty and autonomy," is ultimately legal, not medical. Ibid.

Though "[d]oubts must be resolved in favor of protecting the public, . . . the

court should not, by its order, infringe upon defendant's liberty or autonomy any

more than appears reasonably necessary to accomplish this goal." Ibid.; see also

State v. Ortiz, 193 N.J. 278, 292 (2008).




                                                                           A-2631-17T3
                                       15
      Applying these principles to the facts before us, we conclude that the trial

court's factual findings – which relate only to Dr. Nathani's credibility but not

to C.M.'s condition – are insufficient to support the recommitment order. Also,

the court erroneously shifted the burden of proof to C.M., and it failed to

consider the full record.    Although the trial court's order stated that C.M.

"continues to be a danger to himself and to society, for the reasons stated on the

record," the record reveals no such reasons. The court made its single factual

finding immediately following Dr. Nathani's testimony; however, it did not

reference C.M.'s dangerousness, only the court's impression of Dr. Nathani's

testimony:

             It really doesn't matter [whether Dr. Nathani is
             qualified as an expert witness], because . . . I'm familiar
             with Dr. Masry. Over the several times he was here, I
             caused him and required him to make more detailed
             reports, and apparently, he didn't pass that information
             onto his successor doctor, because even though . . . Dr.
             Nathani may be an expert, I find his opinion to be a net
             opinion. There's been no basis for . . . his opinion that's
             been put into the record. And frankly, I'm shocked that
             he didn't know the reason the defendant was there for
             murder. I don't believe that he remembered it at all. I
             don't think he even knew it, frankly, based on the
             manner in which he testified. . . . I find his opinion to
             be a net opinion, and therefore, not convincing . . . to
             this Court in any degree whatsoever. Therefore, the
             status quo will remain in effect.

             [(Emphasis added).]

                                                                           A-2631-17T3
                                        16
      The trial judge based his decision on the following premises: (a) Dr.

Nathani's testimony was not credible, in part because he did not know C.M. was

originally committed after murdering his own mother; (b) Dr. Nathani's opinion

was unavailing because it was "net," meaning it lacked a supporting basis in the

record; and (c) therefore, the status quo must remain in effect.

      While we defer to the trial court's appraisal of Dr. Nathani's credibility,

its limited finding regarding the expert's testimony does not support the

conclusion that C.M. remains dangerous. The court neither expressly addressed

whether C.M. remains dangerous nor recited facts pertinent to that issue.

Conceivably, the court could have based a dangerousness finding on evidence

suggesting that C.M. would not comply with his medication, but the court did

not. Instead, the trial court stated only its conclusions regarding Dr. Nathani's

testimony, without addressing C.M.'s dangerousness, the essential issue.

Therefore, the findings the trial court announced did not support finding C.M.

dangerous.

      In addition, the trial court erred in presuming the status quo must continue

absent evidence to the contrary. Instead of requiring the State to meet its burden

of showing by a preponderance that C.M. is still so dangerous as to require




                                                                          A-2631-17T3
                                       17
confinement, the trial court, by implication and in effect, burdened C.M. with

the obligation to prove commitment is no longer warranted.

      Finally, the trial court apparently failed to consider the full record,

particularly reports by Dr. Masry recommending C.M. be considered for

discharge. Dr. Masry's reports did not suffer from the shortcomings the court

identified in Dr. Nathani's report and testimony. Dr. Masry set forth the basis

for his opinions, and he was well aware that C.M. had murdered his mother. Dr.

Masry's first report, from 2015, set forth C.M.'s entire history at length, detailing

both progress and setbacks and accounting for C.M.'s murder of his mother and

past attempts at self-harm. Dr. Masry concluded his assessment by stating that

C.M. still suffers from mental illness and borderline intellectual functioning,

and he remains at risk of violence if not medicated and of being exploited.

Noting that C.M. has "adequate insight" into his illness, "fair insight" into his

need for medication, and "poor judgment" about possessing contraband, Dr.

Masry recommended a year-long trial period before discharge planning.

      Dr. Masry's second report, from 2017, did not rehash C.M.'s history.

Instead, it began by noting that C.M.'s last suicide attempt was in 1983; his last

statement about self-harm was in 1993; and his last non-compliance with his

medication regimen was in 2004, "a one-time incident."             The report then


                                                                             A-2631-17T3
                                        18
described the CODI group home requested for C.M., explaining its policies on

supervision, dispensing medication, and other issues. Dr. Masry stated that he,

C.M.'s treatment team, the SSPRC and CARP all agreed that C.M. "is ready for

discharge planning." In the meantime, Dr. Masry recommended, among other

steps, allowing C.M. brief supervised visits followed by random drug screening,

and that until court approval, C.M. should continue hospitalization and regular

Krol hearings. In sum, avoiding the problems in Dr. Nathani's opinion, Dr.

Masry recommended a measured approach towards discharging C.M. to the

group home after concluding he had received all that Ancora could provide him.

The court's failure to address Dr. Masry's reports also warrants reversal.

      Reversed and remanded. We do not retain jurisdiction.




                                                                             A-2631-17T3
                                      19
