                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2678-09T2

STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                           September 9, 2014
v.
                                           APPELLATE DIVISION
JUNE GORTHY a/k/a
JUNE GOVERNALE,

     Defendant-Appellant.


         Submitted December 5, 2011 – Decided October 9, 2012
         Remanded by Supreme Court September 20, 2013
         Submitted March 18, 2014 - Decided September 9, 2014

         Before Judges Alvarez, Ostrer and Carroll.

         On appeal from the Superior Court of New
         Jersey,   Law    Division, Ocean  County,
         Indictment No. 06-11-2612.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Michele Adubato, Designated
         Counsel, on the briefs).

         Christopher J. Gramiccioni, Acting Monmouth
         County Prosecutor, attorney for respondent
         (Patricia B. Quelch, Special Deputy Attorney
         General/Acting   Assistant  Prosecutor,  and
         Mary R. Juliano, Special Deputy Attorney
         General/Acting   Assistant   Prosecutor,  of
         counsel and on the briefs).

     The opinion of the court was delivered by

ALVAREZ, J.A.D.
       A jury found defendant June Gorthy, also known as June

Governale, not guilty by reason of insanity, N.J.S.A. 2C:4-1, on

a   charge    of   fourth-degree       stalking,     N.J.S.A.            2C:12-10(b).1

Before the trial commenced, the trial judge found her competent

to stand trial while unable to "voluntarily, intelligently, and

knowingly waive" the insanity defense as to the stalking count.

Defendant    was    sentenced     to    commitment    in       a    mental     health

facility for a term not to exceed eighteen months.

       After defendant's trial, but prior to our decision on her

appeal, we decided State v. Handy, 421 N.J. Super. 559 (App.

Div.   2011).      In   Handy,   we    concluded   that    a       defendant     found

competent     to    stand    trial,      but   not    able          to     knowingly,

intelligently, and voluntarily waive the insanity defense to a

crime, should not be compelled to accept an acquittal by reason

of insanity unless his or her substantive defenses are addressed

first.     See id. at 565.       Only if the jury rejected a defendant's

substantive defenses would defendant then present the insanity

defense.     Handy, supra, 421 N.J. Super. at 612-13.                      Consistent

1
  The jury convicted defendant of fourth-degree possession of
prohibited weapons or devices, hollow-point bullets, N.J.S.A.
2C:39-3(f)(1), and third-degree unlawful possession of a
handgun, a .22 Ruger, N.J.S.A. 2C:39-5(b). The insanity defense
was not raised as to those crimes.    Defendant was sentenced to
concurrent five years of probation on those offenses.    Because
of several related arrests, incarceration pending evaluations,
and the trial itself, defendant accumulated 1215 days of jail
credit by September 30, 2009, the sentence date.



                                        2                                     A-2678-09T2
with our decision in Handy, we remanded to the trial court, to

afford defendant the opportunity for a new trial on the stalking

charge — if she were again found competent to stand trial and if

she opted to waive double jeopardy.          That new trial would follow

the bifurcated order described in our decision in Handy — an

initial   trial   at    which   defendant    would   present   substantive

defense theories, and if convicted, a second trial at which she

would present only the insanity defense.

    When the State's appeal of our decision reached the Supreme

Court, Handy and its predecessor, State v. Khan, 175 N.J. Super.

72 (App. Div. 1980), were overruled in part, and the bifurcated

procedure was disapproved.       State v. Handy, 215 N.J. 334 (2013).

Henceforth,   "trials    involving   a     substantive   defense    and   the

insanity defense [would] be tried in a unitary proceeding."               Id.

at 364.

    The   Court   also    supplied   the    analytical   solution    to   the

quandary posed by a defendant found competent to stand trial,

who wishes to waive the insanity defense altogether when that

option appears unwise.      As the Court said,

           part of the legacy of the Khan decision has
           been confusion about whether one can be
           competent to stand trial but incompetent to
           waive the insanity defense . . . . Part of
           the confusion arises from the assumption
           that the question involves not so much the
           defendant's competence to waive the insanity




                                     3                              A-2678-09T2
              defense     but     the   wisdom        of   making   that
              choice.

              [Id. at 361.]

The   Court    went     on   to    observe    the     decision   can   be    made   by

applying:

              a procedure akin to that which we utilize in
              evaluating a competent defendant's effort to
              waive other significant rights. That is, a
              thorough   and  searching   inquiry   of  an
              otherwise competent defendant concerning his
              or her understanding of the nature of the
              right being waived and the implications that
              flow from that choice . . . the trial court
              [must] determine whether the decision to
              waive the insanity defense, particularly in
              the context of a unified trial proceeding,
              is    indeed    knowing,    voluntary    and
              intelligent.

              [Id. at 362 (citation omitted).]

After   certification        was    granted      on    defendant's     appeal,      the

matter was summarily remanded for reconsideration in light of

the Handy decision.

      Given     the     Court's     instruction        that   the   waiver    of    an

insanity defense by a competent defendant was to be scrutinized

on appellate review as would be any other waiver made by a

competent defendant, we now affirm.                    The Law Division judge's

decision that defendant lacked the capacity to make a knowing,

intelligent, and voluntary waiver was adequately supported by

the record and thus warrants affirmance.




                                          4                                  A-2678-09T2
      The   stalking       charge    was    the    culmination        of   defendant's

relocation to New Jersey in 2002 from her home in Colorado,

during   which      she    moved    her    personal      belongings,       including    a

number of weapons, in a truck and horse trailer.                      Defendant came

to New Jersey with the hope of encountering a seminar presenter,

the   victim   of    the    stalking,      whom    she    had   met    several    years

earlier.     Defendant was eventually charged with the offenses at

issue when she left a voicemail on the victim's phone despite a

no-contact order.

      Defendant's         pretrial    competency         hearings     extended     over

approximately a year.              Multiple psychiatric and psychological

evaluations were completed, as well as a fitness to proceed

assessment     under      N.J.S.A.    2C:4-5      by   the   Department      of   Human

Services.      On April 25, 2008, the trial judge determined that

defendant met the statutory test pursuant to N.J.S.A. 2C:4-4 and

N.J.S.A. 2C:4-6 for competence to stand trial.2

      On September 18, 2008, a final hearing was conducted after

counsel provided the court with an evaluation by defendant's

expert, Dr. Kenneth J. Weiss.                   It was on that date that the

2
  The trial judge summarized his conclusions thus: "[Defendant]
comprehends that she is in a court of justice charged with a
criminal offense, that there is a judge on the bench, that there
is a prosecutor present who will try to convict her . . . . that
she has a lawyer . . . . and [] she understands her right not to
testify."    Defendant does not appeal from the finding of
competence to stand trial.



                                            5                                  A-2678-09T2
judge determined that, while defendant was competent to stand

trial,    she     could     not    waive       the    insanity      defense.         The

determination relied heavily on Weiss's report.

       On remand, defendant again contends that the trial judge

"should    have    accepted       [defendant's]         waiver    of   the    insanity

defense and proceeded solely on the substantive defenses."                           The

argument is premised on the court's earlier finding that she was

competent to stand trial.             Defendant argues from that finding

that she should therefore "also have been competent to waive the

insanity defense."          But, a knowing, intelligent, and voluntary

waiver requires more than competence as defined by statute.

       In the competency hearing, the trial judge heard testimony

and    reviewed    reports    regarding         defendant's       extensive     mental

health history and diagnoses.              It became clear that defendant,

despite    medication       and    treatment         efforts,    persisted     in    her

delusion that the victim wanted to continue a relationship with

her.     In fact, when the judge addressed defendant directly, she

complained to the judge that her attorney was not representing

her in the fashion that she wished because counsel would not

present    the    defense    that    the       victim    had     solicited   contact.

Defendant also insisted that she and the victim had enjoyed a

relationship for years, the victim had asked her to relocate,

and that after she did so, on multiple occasions, the victim




                                           6                                   A-2678-09T2
would attempt to see her in public, "at the post office, at the

store," and would jog and ride her bicycle past                        defendant's

house.

       Along those lines, Weiss's report quoted defendant denying

that her relationship with the victim was a delusion, stating

that    she    was   not      actually    insane   during    the   times   that     she

contacted the victim and that "she did not want to raise issues

of her mental state at trial because the prosecutor is anti-

mental illness."           Defendant, who was initially in the Pretrial

Intervention Program (PTI),3 said to Weiss that the PTI probation

officer had told her that the only way she would be granted the

opportunity to explain her relationship with the victim to a

judge would be to violate PTI, which she did, resulting in the

trial.

       Defendant       also    believed    that,    unless   the   victim    stopped

lying about her, she had to have a trial, as the victim was

"'trying to save herself.'"                Defendant agreed with Weiss that

"she was mentally disturbed during the time in question[] but

rather than making that an issue at trial, she want[ed] 'the

truth'    to    come    out."       Defendant      perceived   the   State     to   be

overreacting to the situation and believed the prosecutor wanted

"to do a great deal of harm to her."

3
    N.J.S.A. 2C:43-12 to -22.



                                            7                                A-2678-09T2
    In Weiss's opinion, defendant, despite being a person of

above-average    intelligence,       was   completely   unable      to

realistically assess her situation vis-à-vis the victim.          She

repeated to Weiss the statement that she had made to others —

that the victim loved her.     That, Weiss said, was "most clearly

against all evidence and would have to be considered delusional.

Because of this, [defendant] does not see that what she did was

wrong. . . .    [S]he would not have a rational understanding of

the basis for the charges."

    Weiss opined that, on the stalking charge, defendant:

         was psychotic and delusional during the
         dates in question, to the point that she was
         unable to observe the nature and quality of
         her conduct. . . .    [S]he did not have the
         residual ability to know that she would be
         placing the victim in fear of bodily injury
         or to know that she was doing wrong.

As a result of mental disease, she had a "defect of reason such

that she did not know what she was doing was wrong[] . . .

consistent with the requirements of N.J.S.A. 2C:4-1."

    Weiss further opined that, even if defendant was found to

be competent to stand trial:

         she would be making the choice to forego an
         insanity defense knowingly, but neither
         intelligently nor voluntarily. She is aware
         of her rights and alternatives, but fails to
         comprehend the consequences of failing to
         assert the defense, which bears on the
         question of an intelligent refusal.      Her
         delusional   condition   has  narrowed   her



                                 8                          A-2678-09T2
            ability to form judgments about her case,
            and in that sense she is not acting of her
            own free will, which bears on the question
            of a voluntary refusal.

Ultimately,       he    concluded     that         defendant       met    "the    test     for

'insanity'       with    respect    to     the      stalking      charge"    and     "f[ell]

short of the requirements in Khan[4] for a refusal to utilize the

available insanity defense."

       Substantially relying on Weiss's report, along with all the

other    evidence,        the     judge     found        that,    despite     defendant's

superficially          rational    expressed         rejection       of     the    insanity

defense because of the potential for "hospital time" that she

considered       the    equivalent    of       incarceration,        the    real     impetus

behind her waiver was her imagined relationship with the victim.

The     judge    was     convinced        by       the    State's        proofs    that     no

relationship had ever existed with the victim.                               He therefore

decided, pursuant to Khan, to "assert the insanity defense" on

defendant's behalf as to the stalking charge because she could

not     "voluntarily,       intelligently            and        knowingly     waive       that

defense."

       The Court in Handy reaffirmed the notion that a trial judge

could     find     a    defendant         competent        to     stand     trial,      while

simultaneously finding he or she cannot voluntarily, knowingly,


4
    Weiss' report predated the decision in Handy.



                                               9                                     A-2678-09T2
and intelligently waive the insanity defense.                   Handy, supra, 215

N.J. at 361-62.    In that scenario, the trial judge must, after a

"searching    inquiry,"       determine      whether        a    defendant      truly

understands that which he or she is waiving and the potential

consequences of the choice.         Handy, supra, 215 N.J. at 362.                   In

other words, whether the waiver is indeed knowing, voluntary,

and intelligent.    Ibid.

       When considering whether a criminal defendant's waiver is

sustainable, trial courts must "apply a procedure akin to that

which we utilize in evaluating a competent defendant's effort to

waive other significant rights."             See Handy, supra, 215 N.J. at

362.

       For instance, in State v. DuBois, 189 N.J. 454, 464-66

(2007), the Court entrusted the issue of a defendant's waiver of

the right to counsel to the "sound discretion" of our trial

judges,   explaining    that     they    are    "in     the     best   position     to

evaluate [a] defendant's understanding of what it mean[s] to

[self-]represent   []     and    whether     [a]      defendant's      decision     to

proceed pro se [i]s knowing and intelligent."                   See id. at 475.

       Examining the record, as mandated by Handy, created by the

judge's "thorough and searching inquiry," it is clear that the

trial   judge,   over   the     multiple       days    of     pretrial   testimony

regarding    defendant's        competence       to     stand      trial,     delved




                                        10                                   A-2678-09T2
thoroughly into defendant's psychiatric history, diagnosis, and

treatment.     When addressing her attempted waiver of the insanity

defense, he engaged in a colloquy with her about her reasons.

Defendant's responses were not related to any legal issue or

consequence.       The responses related on the whole to her false

beliefs about the victim and her desire to affirm her imagined

relationship in court.            She also claimed that she could not

raise the insanity defense because the prosecutor was "anti-

mental illness," a statement irrelevant to the question posed.

    Clearly, defendant lacked the ability to make a rational

choice on the question of defenses to the stalking count.                   She

wanted validation of the "truth" of her imagined relationship

with the victim, a motive irrelevant to the legal decision of

waiver,   unrelated     to   trial    strategy,   or   even   to   any   legal

question.     On the subject of the stalking charge, defendant's

reasons     for    waiving    the     insanity    defense     were    neither

intelligent,      nor   voluntary,      arising   as   they    did   from     a

compulsion.

    Accordingly, we find that the trial judge did not err.                  His

conclusion     was,     indeed,      based   on   "sufficient      supporting

evidence."     See State v. Purnell, 394 N.J. Super. 28, 50 (App.

Div. 2007).       Defendant's decision to waive the insanity defense

was not knowing, voluntary, and intelligent.             See Handy, supra,




                                       11                            A-2678-09T2
215 N.J. at 362.   The judge's decision to interpose the defense

over defendant's objection was correct.

    Affirmed.




                               12                       A-2678-09T2
