                                  NOT FOR PUBLICATION WITHOUT THE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-2498-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN P. HARTMAN, a/k/a
BOSTON,

     Defendant-Appellant.
__________________________

                    Submitted September 10, 2019 –
                    Decided August 10, 2020

                    Before Judges Messano, Vernoia, and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 12-05-
                    0581.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Daniel Vincent Gautieri, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Christine A. Hoffman, Acting Gloucester County
                    Prosecutor, attorney for respondent (Dana R. Anton and
                    Jonathan E.W. Grekstas, Special Deputy Attorney
                    General/Acting Assistant Prosecutors, on the brief).
PER CURIAM

      Defendant John P. Hartman appeals from a judgment of conviction

entered following a jury verdict finding him guilty of driving while suspended

for a second or subsequent violation of the driving while intoxicated (DWI)

statute, N.J.S.A. 39:4-50. Based on our review of the record, we are convinced

defendant was denied a fair trial by the court' rejection of his requests to voir

dire the jury concerning his insanity defense, and we reverse the conviction and

remand for a new trial.

                                     I.

      Defendant was first convicted of DWI in 1999. In October 2011, he was

convicted a second time, but because his second offense was committed more

than ten years after his first, he was sentenced as a first-time offender in

accordance with the step-down provision of the DWI statute. See N.J.S.A. 39:4-

50(a)(3). The court imposed a seven-month license suspension.

      Twenty days later, on November 14, 2011, Monroe Township Patrolman

Bruce Maute stopped defendant's vehicle after checking its plates in a database

and determining the license of the vehicle's owner, defendant, was suspended.

After stopping the vehicle, Maute observed that defendant was its driver. Maute

asked defendant if he knew his license was suspended, and defendant replied his

                                                                         A-2498-17T1
                                          2
license was "suspended for driving while intoxicated."          Maute arrested

defendant and a grand jury later charged defendant in an indictment with fourth-

degree operating a motor vehicle during the period of a license suspension for a

second or subsequent DWI conviction. See N.J.S.A. 2C:40-26(b).

      An issue was later raised concerning defendant's competency to stand trial

because he suffered a traumatic brain injury two days after his arrest.          A

psychologist, Dr. Barry S. Kardos, testified at a competency hearing that

defendant's brain injury resulted in deficits to his mental organization,

articulation, memory, and abstract thinking.       Dr. Kardos also explained

defendant knew his name, where he lived, his attorney's name, that he faced

criminal charges, who the judge and prosecutor were, and "there could be a

possible jury trial" on the charge against him. After hearing Dr. Kardos's

testimony, the court determined defendant was competent to stand trial.

      At trial, the State presented Maute as a witness. Defendant relied on an

insanity defense, and called Dr. Kardos, who was qualified as an expert in

forensic psychology.     Dr. Kardos explained he met with defendant and

conducted a psychological evaluation, interviewed defendant's wife and a friend,

and reviewed defendant's family's mental health histories and materials from the

criminal case. He testified about defendant's mental health history and relied on


                                                                          A-2498-17T1
                                       3
defendant's report that on the evening of his arrest, he contemplated suicide and

needed to get to his friend's home or "he was going to kill himself." Dr. Kardos

testified that on November 14, 2011, defendant did not, and could not,

understand operating his vehicle was wrong because he was in the midst of a

major depressive episode.

      Defendant also called his wife as a witness and three character witnesses.

The jury convicted defendant of operating a vehicle while his license was

suspended for a second or subsequent DWI violation. The court sentenced

defendant to a mandatory 180-day custodial term, see N.J.S.A. 2C:40-26(c), as

a condition of two-year's probation. The court stayed service of the custodial

portion of the sentence pending the outcome of this appeal.

      Defendant presents the following arguments for our consideration:

            POINT I

            THE TRIAL COURT DEPRIVED [DEFENDANT] OF
            A TRIAL BEFORE A FAIR AND IMPARTIAL JURY
            WHEN [IT] FAILED TO ASK JURORS ADEQUATE
            QUESTIONS CONCERNING THE INSANITY AND
            [] DIMINISHED CAPACITY DEFENSES.

            POINT II

            THE COURT ABUSED ITS DISCRETION IN
            DETERMINING THAT THE PSYCHOLOGIST
            RETAINED BY THE DEFENSE WAS NOT
            QUALIFIED TO PROVIDE AN EXPERT OPINION

                                                                         A-2498-17T1
                                       4
            REGARDING [DEFENDANT'S] COMPETENCE TO
            STAND TRIAL.

            POINT III

            THE COURT ERRED IN SUSTAINING AN
            OBJECTION TO THE DEFENSE PSYCHOLOGIST'S
            TESTIMONY THAT [DEFENDANT] DID NOT
            UNDERSTAND WHAT HE WAS DOING AT THE
            TIME OF THE OFFENSE ON THE BASIS THAT
            THAT WENT TO THE "ULTIMATE ISSUE"
            BEFORE THE JURY.

            POINT IV

            [DEFENDANT'S] MOTION FOR A JUDGMENT OF
            ACQUITTAL SHOULD HAVE BEEN GRANTED
            BECAUSE HE COULD NOT BE GUILTY OF
            VIOLATING N.J.S.A. 2C:40-26[(b)] BY DRIVING
            WITH A SUSPENDED LICENSE FOR A SECOND
            DWI OFFENSE WHERE THAT DWI WAS
            TREATED AS A FIRST OFFENSE PURSUANT TO
            N.J.S.A. 39:4-50(a)(3).

                                      II.

      Defendant claims he was denied a fair trial because the court rejected his

requests to voir dire the prospective jurors about whether they could fairly

consider his "insanity and diminished capacity defenses." He argues the court

erred by failing to ask the jurors questions that would have revealed possible

biases and prejudices concerning the insanity defense.




                                                                        A-2498-17T1
                                       5
      Prior to commencement of trial, defense counsel submitted a list of

proposed juror voir dire questions to the court.        Pertinent to this appeal,

defendant proposed three questions related to mental health issues and the

following questions about the insanity defense: "Do you believe that insanity is

a legitimate defense that relieves someone of criminal responsibility, or do you

believe insanity is an excuse that people use to avoid punishment."1

      The court initially indicated it would ask the jurors the proposed mental

health question about whether the jurors or their family members or close friends

ever experienced a significant mental health issue. The court denied defendant's

request that the two other mental health questions be posed to the jurors.

      The court also denied defendant's request the jurors be queried about the

insanity defense, stating it would not ask the jurors if they thought the defense

was "a good or a bad thing," or "how they feel about the law," and it would tell

the jury "what the law is if there is a request for a specific charge" on insanity.

Defense counsel persisted, arguing the jury would not have the benefit of the



1
   The proposed mental-health-related questions were: (1) "Have you, your
family members, or close friends ever experienced a significant mental health
issue? If so, how has that affected you?"; (2) "Do you consider mental illness a
sickness or a weakness?"; and (3) "Do you believe that someone with a
significant mental health issue needs medical treatment or that an individual
should be able to deal with such a problem by himself?"
                                                                           A-2498-17T1
                                        6
court's instruction on insanity at the time the jury was being selected, and the

proposed question was necessary to determine if "there are any biases that may

affect the juror's ability to properly serve, or to follow the law." Defense counsel

asserted that "it would be appropriate to ask [the jurors] . . . in specific regard

to" the insanity defense "given that the . . . defense" had been asserted on

defendant's behalf. The court again denied defendant's request.

      Defense counsel also requested the court ask a "modified version" of the

question concerning the insanity defense, "simply inform[ing] the jury that the

insanity defense may be asserted and ask[ing] if . . . there are any

reasons . . . they wouldn't be able to follow [the court's] instruction in regards to

the same." The court denied the request, again explaining it would instruct the

jury concerning the applicable law and the jury's obligation to follow the law as

instructed.

      The following day, prior to the commencement of the voir dire, the court

advised counsel it would not ask the jurors about whether they or their family

members had ever experienced a significant mental health issue. The court

reasoned the question raised issues under the Health Insurance Portability and




                                                                             A-2498-17T1
                                         7
Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d to d-9.2 In response

to the court's ruling, defense counsel renewed her request that the court voir dire

the jurors about the insanity defense. The court rejected the request, reiterating

that defendant's proposed question asked the jurors to determine the legitimacy

of the insanity defense and that it was not the jury's duty to make that

determination.

      Defense counsel requested the court advise "the jurors that insanity can

be a legitimate legal defense and that if there's any reason they would not be

able to follow the law in regards to that defense, that they should advise the

court as to that during voir dire." Unpersuaded, the court again stated it would

instruct the jury that it was obligated to follow the law as instructed regardless

of whether they agreed with the law.

      Defense counsel again argued "there needs to be some voir dire to ensure

that the jurors will not have any biases that will prevent them from following

that law." She requested the court inform the jurors "insanity may be a defense

in this case" and ask the jurors if there "is any reason that you would have any




2
   The court's determination that HIPAA precluded defendant's proposed voir
dire question is not an issue on appeal. We observe that neither the court nor
the State cited to any HIPAA provision supporting the court's determination.
                                                                           A-2498-17T1
                                        8
difficulty" following the law on insanity as instructed by the court. The court

denied the request.

      The court determined that in lieu of the question concerning whether

defendant or his family or friends had experienced a significant mental health

issue, it would ask the jurors if they would be able to listen to evidence regarding

mental health issues and whether listening to such evidence would affect their

ability to be fair and impartial. 3 During the voir dire of the jury, the court did

not refer to the insanity defense and did not make any inquiries related to the

defense.

      Based on that record, we consider defendant's claim the court erred by

failing to make any inquiry of the jurors concerning the anticipated insanity

defense. "It is axiomatic that an impartial jury is a necessary condition to a fair

trial." State v. Papasavvas, 163 N.J. 565, 584 (2000). "'The purpose of voir dire

is to ensure an impartial jury' by detecting jurors who cannot fairly decide a

matter because of partiality or bias." State v. O'Brien, 377 N.J. Super. 389, 412

(App. Div. 2004) (quoting State v. Martini, 131 N.J. 176, 210 (1993)), aff'd in

part, rev'd in part on other grounds, 183 N.J. (2005). Thus, "voir dire acts as a


3
  The questions the court posed to the jurors were: "Would you be able to listen
to evidence regarding mental health issues? Would it affect your ability to be
fair and impartial?"
                                                                            A-2498-17T1
                                         9
discovery tool. It is like a conversation in which the parties . . . try[] to reveal

the source[s] of any" partiality, prejudice, or bias. State v. Moore, 122 N.J. 420,

446 (1991). To ensure a defendant's right to a fair trial, "a trial court must 'probe

the minds of the prospective jurors to ascertain whether they hold biases that

would interfere with their ability to decide the case fairly and impartially.'" State

v. Winder, 200 N.J. 231, 251-52 (2009) (quoting State v. Erazo, 126 N.J. 112,

129 (1991)).

      "Voir dire procedures and standards are traditionally within the broad

discretionary powers vested in the trial court and 'its exercise of discretion will

ordinarily not be disturbed on appeal.'" Papasavvas, 163 N.J. at 595 (quoting

State v. Jackson, 43 N.J. 148, 160 (1964)). "Generally, a trial court's decisions

regarding voir dire are not to be disturbed on appeal, except to correct an error

that undermines the selection of an impartial jury." Winder, 200 N.J. at 252.

However, although "the trial judge possesses 'broad discretionary powers in

conducting voir dire . . .[,]' our Supreme Court has [explained] that it will not

'hesitate[] to correct mistakes that undermine the very foundation of a fair trial—

the selection of an impartial jury.'" State v. Tinnes, 379 N.J. Super. 179, 184

(App. Div. 2005) (quoting State v. Fortin, 178 N.J. 540, 575 (2004)).




                                                                             A-2498-17T1
                                        10
      Our examination of the court's refusal to voir dire the jurors concerning

defendant's anticipated insanity defense requires that we determine "whether 'the

overall scope and quality of the voir dire was sufficiently thorough and probing

to assure the selection of an impartial jury.'" Winder, 200 N.J. at 252 (quoting

State v. Biegenwald, 106 N.J. 13, 29 (1987)). We consider the issue in the

context of well-established principles governing the required voir dire of jurors

concerning insanity as a defense to criminal charges.

      In Moore, the Court addressed the adequacy of a voir dire of prospective

jurors concerning the insanity defense. 122 N.J. at 453-54. The Court found it

"well established that many laypersons have a great deal of difficulty in

understanding the insanity defense, and many people might not be able to

consider it as a viable defense." Ibid. In recognition of those difficulties and

inabilities of prospective jurors, the Court "instructed [trial] courts to 'screen out

prospective jurors who could not consider an insanity defense due to their

prejudices or biases against it.'" Winder, 200 N.J. at 252 (quoting Moore, 122

N.J. at 454). In State v. Harris, the Court reiterated that trial courts are required

to "permit a full opportunity to ask prospective jurors about their attitudes

toward insanity and mental-health defenses." 141 N.J. 525, 541 (1995).




                                                                              A-2498-17T1
                                        11
      In Moore, the Court explained that to properly determine if a juror has a

bias or prejudice concerning the insanity defense, a trial court should ask

"whether a juror can judge the testimony of psychiatric witnesses by the same

standard that he or she would apply to the testimony of any other witness." 122

N.J. at 454; see also Winder, 200 N.J. at 253. The Court also attached to its

opinion "for guidance to courts" a questionnaire that had been used during a jury

voir dire to determine the possible biases and prejudices of potential jurors

concerning the insanity defense. Id. at 454, 488-90. The questionnaire included

the following two questions that are substantially similar to questions defendant

requested, and the court rejected, concerning mental health issues: "Have you

or any of your close friends or relatives had any experience with psychiatry[?]"

and "Do you believe that everyone can overcome depression and/or other mental

negative attitudes merely by becoming more positive in their outlook on life by

setting their minds to it?"4 Id. at 489-90. The questionnaire also included

questions concerning juror's views about psychologists, the use of psychiatric



4
  These questions are substantially similar to the following questions proposed
by defendant and rejected by the trial court: "Have you, your family members,
or close friends ever experienced a significant mental health issue? If so, how
has that affected you?"; and "Do you believe that someone with a significant
mental health issue needs medical treatment or that an individual should be able
to deal with such a problem by himself?"
                                                                         A-2498-17T1
                                      12
testimony at a criminal trial, and whether the jurors could fairly evaluate

psychiatric testimony. Ibid.

      In Winder, the Court found the trial court's jury voir dire satisfied the

Moore standard because the trial court asked whether the jurors had "experience

with psychiatry or psychology"; "ever studied [] psychiatry or psychology"; or

knew "anything about the use of psychologists or psychiatrists, during the course

of a criminal trial, that would affect in any way [their] ability to judge such

testimony fairly and just like anybody else's testimony."         200 N.J. at 253

(alterations in original). The Court found the voir dire "was consistent with [its]

exhortations in Moore" and our holding in State v. Murray, where we determined

voir dire questions concerning the juror's knowledge or study of psychology and

related fields, his or her views on those areas, and whether his or her views

would hinder the ability to be fair and impartial "were sufficient to determine if

any jurors had biases for or against mental health professionals and mental state

defenses," 240 N.J. Super. 378, 392 (App. Div. 1990). 200 N.J. at 252. In

Winder, the Court concluded the "[d]efendant points to no specific, essential

question that was not sufficiently explored through the court's voir dire" and

rejected the defendant's claim the voir dire deprived the defendant of a fair trial.

Ibid. The same cannot be said here.


                                                                            A-2498-17T1
                                        13
      The trial court did not abuse its discretion by refusing to ask defendant's

proposed question about the juror's views on the legitimacy of the insanity

defense, see Murray, 240 N.J. Super. at 393 (explaining a trial court has

discretion whether or not to inquire about attitudes concerning "rules of law"),

but defendant modified his request and repeatedly asked for a voir dire focused

on the jurors' views on the insanity defense. The court's voir dire did not satisfy

the standard established in Moore, applied in Murray, and reaffirmed in Winder.

The court did not ask the jurors any of the questions suggested by the Court in

Moore and, in fact, refused to ask questions substantially similar to those the

Court provided as guidance. The trial court also did not pose any of the

questions found essential in Murray and Winder for the voir dire in a case

involving an insanity defense. For example, the court did not ask whether the

jurors could judge the testimony of a psychologist in the same manner they

would any other witness, see Moore, 122 N.J. at 454, or make any other inquiry

concerning the jurors' knowledge or opinions concerning psychology and

whether the jurors had any biases concerning mental health professionals or the

insanity defense.

      We are not convinced the only questions the court indulged defendant by

asking – whether the jurors "would be able to listen to evidence regarding mental


                                                                           A-2498-17T1
                                       14
health issues" and whether listening to that evidence would affect their

"abilit[ies] to be fair and impartial" – afforded defendant "the full opportunity

to ask prospective jurors about their attitudes toward insanity and mental-health

defenses" to which he was entitled. See Harris, 141 N.J. at 541; cf. State v.

Dunne, 124 N.J. 303, 319 (1991) (rejecting a challenge to a jury voir dire

because "the trial court allowed frank inquiry of the potential jurors about their

attitudes towards the insanity defense in the circumstances of [the] case").

      The court's generic inquiries made no mention of the insanity defense or

the juror's views concerning the validity of the psychological sciences and

psychological testimony. In our view, the questions are too vague and general

to have effectively yielded information concerning the well-established bias and

prejudice toward the insanity defense about which the Court expressed its

concern, and based its holding concerning the voir dire, in Moore. Indeed, the

court's refusal to even mention the insanity defense required juror prescience to

convert the generic questions posed into a meaningful inquiry of the area of

concern expressed by defense counsel and at the center of the case–defendant's

insanity defense.

      We are therefore convinced the court's refusal to make inquiries

concerning juror's views about the defense, in accordance with the guidance


                                                                          A-2498-17T1
                                       15
provided by Moore or in the manner found acceptable by the Court in Winder,

deprived defendant and the court of the information necessary to "screen out"

jurors "who could not consider an insanity defense due to their prejudices or

biases against it." Moore, 122 N.J. at 454. We reject the view that merely

instructing the jurors to follow the law as given by the court eliminated the need

for a voir dire about the insanity defense and the juror's views on psychology

and psychological testimony.       That view does not adequately protect a

defendant's right to information concerning the jurors' possible biases and

prejudices relevant to the insanity defense before a jury is selected in the first

instance, and its application deprived defendant of a fair trial. See Winder, 200

N.J. at 262. We therefore reverse his conviction and remand for a new trial.

                                       III.

      Defendant also argues the court erred by denying his motion for acquittal.

He claims he was entitled to dismissal of the charge under N.J.S.A. 2C:40-26(b)

because the statute applies only to individuals driving while suspended for a

second or subsequent violation of the DWI statute, N.J.S.A. 39:4-50. Defendant

relies on the statute's step-down provision, N.J.S.A. 39:4-50(a)(3), and the

evidence he had a 1999 DWI conviction, a second DWI conviction more than

ten years later on October 26, 2011, and he was arrested and charged on


                                                                          A-2498-17T1
                                       16
November 14, 2011 for driving a vehicle during a period of license suspension

imposed on the second conviction. Defendant contends that because his second

DWI conviction was treated as a first offense for purposes of sentencing under

N.J.S.A. 39:4-50(a)(3), he cannot be convicted under N.J.S.A. 2C:40-26(b) for

driving during a period of license suspension for a second or subsequent DWI

offense.

      "In assessing the sufficiency of the evidence on an acquittal motion, [a

reviewing court] appl[ies] a de novo standard of review." State v. Williams, 218

N.J. 576, 593-94 (2014); see also Pressler & Verniero, Current N.J. Court Rules,

cmt. 1 on R. 3:18-1 (2019). We "must determine whether, based on the entirety

of the evidence and after giving the State the benefit of all its favorable

testimony and all the favorable inferences drawn from that testimony, a

reasonable jury could find guilt beyond a reasonable doubt." Id. at 594. We

review the trial court's legal conclusions de novo, State v. Handy, 206 N.J. 39,

45 (2011), and statutory interpretation presents an issue of law to which we owe

the trial court no deference, State v. Gandhi, 201 N.J. 161, 176 (2010).

      Defendant's argument is founded on an incorrect interpretation of N.J.S.A.

2C:40-26(b) and a misapplication of the step-down provision of the DWI statute,

N.J.S.A. 39:4-50(a)(3). "When construing a statute, [the] primary goal is to


                                                                           A-2498-17T1
                                      17
discern the meaning and interpretation of the Legislature. In most instances, the

best indicator of that intent is the plain language chosen by the Legislature."

Ibid. (citations omitted); see also DiProspero v. Penn, 183 N.J. 477, 492 (2005).

"If the plain language leads to a clear and unambiguous result, then [the]

interpretive process is over." Gandhi, 201 N.J. at 177 (quoting Richardson v.

Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 195 (2007)).

      N.J.S.A. 2C:40-26(b) defines the crime for which defendant was charged

and convicted. In pertinent part, the statute provides that it is a fourth-degree

crime "to operate a motor vehicle during the period of license suspension in

violation of [N.J.S.A.] 39:3-40, if the actor's license was suspended or revoked

for a second or subsequent violation of [the DWI statute N.J.S.A.] 39:4-50."

N.J.S.A. 2C:40-26(b). This provision simply and unambiguously prohibits an

actor from driving a motor vehicle during a period of license suspension for a

second or subsequent DWI conviction. The evidence established that is what

defendant did here.

      At the time of defendant's arrest, he had two prior DWI convictions and

he had been operating a vehicle during the period of his license suspension for

his second DWI conviction. In fact, the evidence showed defendant drove his




                                                                         A-2498-17T1
                                      18
vehicle within three weeks of the court's imposition of a seven-month

suspension of his license for his second DWI conviction.

      Defendant does not point to any ambiguity in N.J.S.A. 2C:40-26(b), and

we find none. He also does not offer any argument that based on the statute's

plain language, the State was required to prove anything more than his operation

of a motor vehicle during a period of license suspension for a second or

subsequent DWI violation. He also does not dispute he had two prior DWI

convictions and the State proved he drove a vehicle while his license was

suspended for his second DWI conviction. There is nothing in either N.J.S.A.

2C:40-26(b)'s plain language or the evidence presented at trial supporting

defendant's claim the court erred by denying his motion for acquittal.

      Defendant seeks refuge from N.J.S.A. 2C:40-26(b)'s unequivocal

language in the step-down provision of the DWI statute.           The step-down

provision, N.J.S.A. 39:4-50(a)(3), however, has no application to the crime

defined in N.J.S.A. 2C:40-26(b) because it does not define or affect the number

of defendant's prior violations of the DWI statute. See State v. Revie, 220 N.J.

126, 139 (2014) (explaining that the step-down provision of N.J.S.A. 39:4-

50(a)(3) affects the imposition of a custodial sentence under the D WI motor

vehicle statute, not the number of convictions for administrative penalties) .


                                                                          A-2498-17T1
                                       19
         The statute only "'accords sentencing leniency to a driver who is a second

and repeat DWI offender where there is a hiatus of ten or more years in between

respectively, the first and second, and the second and third infractions.'" State

v. Conroy, 397 N.J. Super. 324, 330 (App. Div. 2008) (quoting State v. Lucci,

310 N.J. Super. 58, 61 (App. Div. 1998)). In addition, application of the step-

down provision is expressly limited to sentencing under the DWI statute; it

provides that where applicable a second conviction may be treated as a first

offense "for sentencing purposes." N.J.S.A. 39:4-50(a)(3).

         N.J.S.A. 2C:40-26(b) does not criminalize or punish a defendant for prior

violations of N.J.S.A. 39:4-50 and does not enhance or affect the sentences for

those prior violations. State v. Carrigan, 428 N.J. Super. 609, 624 (App. Div.

2012).     A conviction under N.J.S.A. 2C:40-26(b) is for a wholly different

offense: driving a vehicle while under license suspension for a second or

subsequent DWI violation. Ibid. The step-down provision in N.J.S.A. 39:4-

50(a)(3) applies only to sentences imposed for DWI violations and has no

application to the offense charged against defendant under N.J.S.A. 2C:40-

26(b).

         Although he was sentenced as a first offender under the step-down

provision, defendant's 2011 conviction constituted his second DWI conviction.


                                                                           A-2498-17T1
                                         20
The evidence showed defendant drove during the period of license suspension

following his second conviction.        The court therefore correctly denied

defendant's motion for an acquittal.

                                       IV.

      Defendant's remaining arguments concern alleged errors by the trial court

during the competency hearing and trial. Defendant claims the court erred by

denying his request to qualify Dr. Kardos as an expert on competency issues

during the pre-trial competency hearing.

      The original competency hearing took place more than three-and-one-half

years ago. Thus, if defendant claims he is not competent to stand trial on

remand, and the court determines a competency hearing is required, the court

will assess the qualifications of whatever experts may be called on at that time

to determine if they may testify in the areas in which they are offered.

Nonetheless, we address defendant's claim the court erred by rejecting his

request that Dr. Kardos be qualified as an expert in competency.

      "A trial judge is vested with wide discretion in determining the

competency of expert witnesses. An appellate court will not disturb the trial

judge's determination 'unless a clear abuse of discretion appears.'" State v.

Chatman, 156 N.J. Super. 35, 40 (App. Div. 1978) (quoting Henningsen v.


                                                                        A-2498-17T1
                                       21
Bloomfield Motors, Inc., 32 N.J. 358, 411 (1960)). "[A]n appellate court 'may

find an abuse of discretion when a decision "rest[s] on an impermissible basis"

or was "based upon a consideration of irrelevant or inappropriate factors."'"

State v. S.N., 231 N.J. 497, 515 (2018) (second alteration in original) (citation

omitted).

      "[A]n expert 'must "be suitably qualified and possessed of sufficient

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

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

Moore, 122 N.J. at 458-59 (alteration in original)).       "In respect of [this

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

person's qualifications." State v. Jenewicz, 193 N.J. 440, 454 (2008). Thus,

"[t]he expert may be qualified on the basis of his experience, even when it is

limited." State v. Torres, 183 N.J. 554, 572 (2005).

      Here, the court determined Dr. Kardos did not possess sufficient

qualifications to testify as an expert on competency. The court found that most

of Dr. Kardos's competency evaluations related to family court matters, and only

twelve directly regarded "court time." The court also found Dr. Kardos did not

qualify as an expert in competency because "he's never done the research or the

preparation of plans to prepare a person to regain competency." The court's


                                                                         A-2498-17T1
                                      22
view there were weaknesses in Dr. Kardos's qualifications because he had no

experience in preparing plans for regaining competency was "not a sound basis

for precluding [his testimony]" as an expert witness on competency, and should

have been considered by the court, as the fact-finder, only in its determination

of the weight to be given to his testimony. Jenewicz, 193 N.J. at 455.

      Our reversal of defendant's conviction renders it unnecessary to determine

if Dr. Kordas otherwise had sufficient qualifications to testify as an expert in

competency or any other area. We offer no opinion on the issue. 5 If there is a

competency hearing on remand, the court shall be guided by the applicable legal

principles and evidence presented at that time in determining the qualifications

of any proposed expert witness.

      In any event, the court's decision not to qualify Dr. Kardos as an expert

on competency issues would not require a reversal of the court's competency

determination and defendant's conviction. The error was harmless because the

court qualified Dr. Kardos as an expert in psychology and he testified and

offered opinions without restriction on the issues related to defendant's




5
  We also offer no opinion on the existence or scope of the area of expertise on
"competency" for which Dr. Kordas was offered as an expert.

                                                                         A-2498-17T1
                                      23
competency to stand trial under N.J.S.A. 2C:4-4(b).6 Defendant makes no

showing the court's failure to also qualify Dr. Kardos as an expert on

competency issues was clearly capable of producing an unjust result in the

competency hearing, R. 2:10-2, and our review of the record reveals no evidence

that such a qualification would have affected the substance of the testimony he

offered during the hearing.

                                      V.

      Defendant also argues the court erred by sustaining an objection to Dr.

Kardos's response to a question about whether defendant "understood what he

was doing when he drove" on November 14, 2011, stating "I don't think that he

understood what he was doing."       Defendant contends the court erred by

sustaining the objection to the testimony finding Dr. Kardos improperly opined

on the ultimate issue in the case.

      Rule 704 provides that "[t]estimony in the form of an opinion or inference

otherwise admissible is not objectionable because it embraces an ultimate issue

to be decided by the trier of fact." N.J.R.E. 704. "Courts have generally agreed

that the admission of psychiatric testimony on the issue of mental state is an



6
   Dr. Kardos was not offered as an expert witness on the issue of competency
at defendant's trial.
                                                                        A-2498-17T1
                                      24
evidentiary question that should not be unduly restricted." State v. Galloway,

133 N.J. 631, 649 (1993). However, "an expert's 'ultimate-issue testimony'

usurps the 'jury's singular role in the determination of defendant's guilt and

irredeemably taints the remaining trial proofs,'" State v. J.T., 455 N.J. Super.

176, 215 (App. Div. 2018) (quoting State v. Cain, 224 N.J. 410, 424 (2016)), if

the expert, for example, offers an opinion "about [a] defendant's guilt or

innocence," State v. McLean, 205 N.J. 438, 453 (2011).

      In J.T., we held that a State's expert witness's testimony that "explain[ed]

to the jury the concept of 'legal insanity' and then . . . opine[d] on whether [the]

defendant's    conduct     satisfied    the   elements     of    this    affirmative

defense . . . usurped the jury's role by making a definitive declaration of this jury

question." 455 N.J. Super. at 215. Here, Dr. Kardos did not offer an opinion

defendant was innocent or that defendant satisfied the elements required to

establish the insanity defense under N.J.S.A. 2C:4-4(b). The court sustained an

objection to Dr. Kardos's testimony concerning defendant's mental state at the

time he drove his vehicle–that defendant did not know what he was doing at the

time. Such testimony, when offered by a qualified expert, is proper where the

mental state of a defendant in a criminal case is at issue. See, e.g., State v.

Singleton, 211 N.J. 157, 168-71 (2012) (citing expert testimony supporting an


                                                                             A-2498-17T1
                                        25
insanity defense that the "defendant lost his 'ability to regulate . . . his reaction

to the world,'" and did not "understand the nature" of his killing spree); Moore,

122 N.J. at 436 (explaining that expert testimony the defendant "was not aware

of what he was doing[,] . . . [and] not in control of what he was doing," allowed

the jury to determine if the defendant had formed the intent to commit the crimes

charged); State v. Nataluk, 316 N.J. Super. 336, 346 (App. Div. 1998)

(describing expert's testimony the defendant "was neither aware of what he was

doing as he was doing it, nor was he able to comprehend behavior or its

consequences" due to his mental illness); State v. Bauman, 298 N.J. Super. 176,

190-91 (App. Div. 1997) (citing defense experts' testimony the "defendant's

ability to determine right from wrong was diminished" due to the defendant's

"schizoaffective disorder").

      Although "considerable latitude is afforded a trial court in determining

whether to admit evidence, and that determination will be reversed only if it

constitutes an abuse of discretion," State v. Kuropchak, 221 N.J. 368, 385

(2015), the court erred by sustaining the objection to Dr. Kardos's statement

based on its finding he offered testimony on an ultimate question in the case.

The error, however, was harmless because Dr. Kardos otherwise testified

without objection on numerous occasions that defendant did not know what he


                                                                             A-2498-17T1
                                        26
was doing when he drove his vehicle.7 Thus, the court's decision to sustain the

objection to Dr. Kardos's statement was not clearly capable of producing an

unjust result. R. 2:10-2.

      To the extent defendant makes any arguments we have not expressly

addressed herein, they are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

      Affirmed.




7
   Dr. Kardos testified twice on direct examination and once on re -direct
defendant's major depressive episode prevented him from understanding that
driving the vehicle was wrong. On direct examination, Dr. Kardos testified he
did not think defendant knew what he was doing was wrong and the "major
depressive episode prevented [defendant] from appreciating and understanding
that it was wrong for him to drive." On re-direct examination, defense counsel
asked Dr. Kardos if it was his "opinion that [defendant] didn't understand it was
wrong for him to drive at the time[?]" In response, Dr. Kardos said, "[t]hat's
right."
                                                                         A-2498-17T1
                                      27
