                                NOT FOR PUBLICATION WITHOUT THE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-1400-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EXAMPLIAR EXANTUS,

     Defendant-Appellant.
__________________________

                    Submitted September 16, 2019 –
                    Decided August 25, 2020

                    Before Judges Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 16-01-0281.

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

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
                    Hanley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Exampliar Exantus appeals from a judgment of conviction that

was entered after a jury found him guilty on four counts of fourth-degree bias

intimidation, N.J.S.A. 2C:16-1. On appeal, defendant argues the trial court

abused its discretion in denying his request for an adjournment for the purpose

of procuring expert psychiatric testimony to support a defense of diminished

capacity pursuant to N.J.S.A. 2C:4-2. After reviewing the record before us, and

in light of the applicable law, we affirm.

      We discern the following facts from the record. This case stems from a

string of alleged bias intimidation incidents that occurred between April 2013

and August 2015. On August 12, 2013, West Orange Police Sergeant Dennis

McCole met with the victim and his mother after being dispatched to their

apartment regarding a complaint of harassment. They resided next door to

defendant. The victim's mother showed the sergeant a video she had recorded

on her cellphone documenting the encounter. Defendant can be heard on the

video shouting, "[j]ust like a pig greasy faggot, Spanish shithead, greasy faggot;

Spanish shithead, greasy faggot; Spanish shithead, greasy faggot . . . greasy

faggot just like a pig; Spanish shit; get out of the way from faggot; stay in your

fucking territory greasy." According to the victim, defendant had also yelled

similar statements directed at the victim on April 12, 13, 18 and 19, 2013. On


                                                                          A-1400-17T4
                                        2
August 17, 2013, McCole was once again dispatched to complainants'

apartment, and he and his partner heard a male voice yelling "you Spanish greasy

faggot," which appeared to be coming from defendant's apartment. The officers

then observed defendant yelling while leaning out of his apartment window.

Upon seeing the officers, defendant retreated into his apartment and closed the

window. The officers then arrested defendant as he was exiting through the

front of the apartment building.

      From the limited record before us, it is unclear how the issue of

defendant’s mental health came before the court. What is clear is that on May

28, 2015, a pretrial judge entered an order directing that defendant be evaluated

by a qualified psychiatrist or licensed psychologist to determine whether

hospitalization was clinically necessary to perform an examination for

defendant's fitness to proceed to trial. After defendant failed to cooperate in

attending the court-ordered examination, the judge entered a September 14,

2015 order compelling defendant to appear at his attorney's office on September

29, 2015, for an examination or face a contempt order and remand until he

complied.

      Defendant complied with the order and on September 29, 2015, Peter D.

Paul, Ph.D. evaluated defendant for the purpose of determining defendant’s


                                                                         A-1400-17T4
                                       3
competency. By way of social history, defendant indicated that he had obtained

a degree in electrical engineering technology from the New Jersey Institute of

Technology (NJIT) in 1998, but was currently working as a server. 1             He

informed the doctor that he chose not to pursue a career in engineering so that

he was left more time to pursue his spiritual interests. In that regard, defendant

indicated he was an ordained minister of the Jehovah's Witnesses. By way of

medical background, although defendant did not provide the doctor with any

medical records, defendant supplied him with a detailed history of his past

medical treatment that was consistent with the records provided by defense

counsel to the judge.2


1
  Defendant initially attended Rutgers University working towards a degree in
electrical engineering but, finding the curriculum "too difficult," dropped out
and next attended DeVry Institute, ultimately finishing his studies at NJIT.
2
  According to the records submitted to the judge, defendant had a history of
sporadic psychiatric hospitalizations. On February 6, 1996, defendant was
admitted to Saint Barnabas Medical Center for ten days, as the dean and school
psychologists at his college had requested that he be evaluated for paranoid and
delusional behavior. In defendant's discharge summary, the examining doctor
noted that he had initially diagnosed defendant with psychosis upon defendant's
admission, but that defendant's condition eventually improved and upon his
discharge, he "was oriented and was not suffering from either auditory/visual
hallucinations or from suicidal/homicidal ideation."

      Defendant was next admitted to East Orange General Hospital (E.O.G.H.)
for two days beginning on April 28, 2011, after police had arrested defendant


                                                                          A-1400-17T4
                                        4
      Dr. Paul diagnosed defendant with an unspecified personality disorder,

but found defendant fit to stand trial. Specifically, in his report Dr. Paul found

that defendant reported at the time of the evaluation, he was not taking any

prescribed medications and that he felt fine. Defendant reported that he had

been living in West Orange for about six years, and that this was where he

became involved in verbal altercations with a juvenile. He understood the

purpose of the evaluation was to rule out any mental illness.          Defendant

articulated his understanding of his legal situation and the charges against him,

stating the State claimed he used a racist expression. He defended his actions

by saying "[s]omebody calls me a name, so I call them back." Defendant denied

ever hearing voices and during the examination was not distracted by internal

stimuli. His responses were "mostly relevant, coherent, and focused with no

loosening of association."




because he was combative with his family. In the corresponding discharge
summary, the examining doctor diagnosed defendant with schizophreniform
disorder, unspecified state and paranoid type schizophrenia, but also concluded
that at the time of defendant's discharge, he was not suicidal or homicidal, and
presented no danger of injury to himself or others. These reports also noted that
defendant has a history of refusing to take medications.

     Defendant was again admitted to E.O.G.H. on August 17, 2013,
immediately following his arrest by police, where his examining doctor
diagnosed him as having a "mood disorder."
                                                                          A-1400-17T4
                                        5
      On July 14, 2015, defendant gave timely notice of his intent to invoke a

defense of diminished capacity in accordance with N.J.S.A. 2C:4-3(a) and Rule

3:12-1. Defendant, however, never appeared for a psychological evaluation and

steadfastly informed his attorney he did not want to pursue a diminished capacity

defense.

      Subsequently, on January 25, 2016, an Essex County Grand Jury returned

Indictment No. 2016-1-0281 charging defendant with eight counts of fourth-

degree bias intimidation, N.J.S.A. 2C:16-1. The indictment included one count

for the incident that prompted defendant's arrest on August 17, 2013.

      Almost two years after providing notice of intent to pursue a diminished

capacity defense, and after jury selection was underway, defendant abruptly

changed his position and moved for an adjournment to procure an expert to

support a diminished capacity defense. On March 1 and 7, 2017, the trial judge

held an N.J.R.E. 104 hearing on defendant's motion for an adjournment to permit

defendant to raise the diminished capacity defense. At the March 1 hearing,

defendant's counsel argued that defendant's mental disorders rendered him

unable to form the requisite mental state for bias intimidation.        The State

countered that defendant's medical history was insufficient for a diminished

capacity defense.


                                                                          A-1400-17T4
                                       6
        On March 8, 2017, after allowing the parties an opportunity to brief the

issue,3 the trial judge denied defendant’s motion for an adjournment. In an oral

opinion, the judge highlighted the most recent medical report finding defendant

competent to stand trial. The trial judge noted that defendant had consistently

refused to allow his counsel to raise a diminished capacity defense, and noted

that to grant defendant's request for an adjournment at this time would "make a

mockery of the court," and that the request was otherwise a "dilatory tactic."

The judge added that at this late juncture, where the jury had already been

selected, there was also no guarantee, based on defendant's prior refusals to be

evaluated, that he would submit to a diminished capacity evaluation, or an

examination by one of the State's experts.

        The judge reasoned that

              especially at this point, as I indicated this matter has
              been before this court, [this matter] was before another
              court that had many hearings, before me at least on four
              occasions and we discussed the case prior to trial.
              [Raising this defense] was something that defendant
              had the opportunity to engage based on the evidence
              presented to the court to be examined by his own
              expert, and he refused to do so.
              We have completed jury selection, and at this point
              frankly, based on the information that I have in front of
              me; based on the conduct of the defendant, there is no
              guarantee that based on his past behavior that he would,

3
    At this time, the jury had already been selected and the case was ongoing.
                                                                          A-1400-17T4
                                         7
            in fact, attend an appointment by his own doctor, as he
            refused based on the information that was on the record
            provided to the court repeatedly to do so in the past.
            And there [are] no assurances that he would submit to
            an examination by an expert of the State, which the
            State would be entitled to.

            As such, I am denying defendant's request at this
            juncture.

The trial judge further noted that the Court Rules required defendant to provide

the name and information of any testifying doctor thirty days prior to trial, and

that defendant failed to do so. The judge found that the requested adjournment

was likewise improper because the length of the delay would ultimately be of

an indeterminable length, which could inconvenience the litigants in the case.

      In addition, the judge found that based on her review of the exhibits

provided by defendant, a defense of diminished capacity was not self-evident.

The trial judge noted that defendant's treatment in 1996 did not address the issue

of diminished capacity and was otherwise too remote to be reliable in the instant

matter. The trial judge opined that defendant's request appeared to be a dilatory

tactic, given defendant's refusal to submit to examinations that had been

arranged by his own counsel. The trial judge added that no reports currently

supported defendant's defense, and that it was uncertain whether any supporting




                                                                          A-1400-17T4
                                        8
reports would ever exist, or whether any viable defense would even exist after

granting the requested adjournment.

      The case was tried before a jury on March 8 and 9, 2017. On March 10,

2017, the jury found defendant guilty on counts one, two, seven, and eight of his

indictment. On November 3, 2017, the trial judge sentenced defendant to an

aggregate of sixty days in jail as a condition of a three-year period of probation,

imposing special conditions of mental health treatment and maintenance of

employment. On November 6, 2017, the trial judge entered a judgment of

conviction and order for commitment.

      This appeal ensued. On appeal, defendant presents the following point

heading for our review:

            POINT I: THE TRIAL JUDGE ERRED IN DENYING
            [DEFENDANT'S]       MOTION     FOR     AN
            ADJOURNMENT TO PERMIT PSYCHIATRIC
            EVIDENCE THAT HE SUFFERED FROM A
            MENTAL DISEASE OR DEFECT THAT NEGATED
            THE REQUISITE STATE OF MIND FOR THE
            CRIME OF BIAS INTIMIDATION.

Thus, defendant solely argues that the trial judge committed reversible error by

denying his motion for an adjournment to be evaluated so he could pursue a

diminished capacity defense. Defendant requests that we reverse his convictions




                                                                           A-1400-17T4
                                        9
and remand for a new trial, directing to the trial judge ordering that defendant

be evaluated to determine if there are grounds for a diminished capacity defense.

      "The granting of trial adjournments rests within the sound discretion of

the trial court.      Absent an abuse of discretion, denial of a request for an

adjournment does not constitute reversible error." State v. Smith, 87 N.J. Super.

98, 105 (App. Div. 1965). Additionally, a trial court may decline to allow a

defendant to pursue a diminished capacity defense "only when the evidence is

viewed in the light most favorable to the defendant, and still no suggestion

appears that the defendant's faculties had been so affected as to render the

defendant incapable of purposeful and knowing conduct." State v. Galloway,

133 N.J. 631, 648-49 (1993).

      N.J.S.A. 2C:16-1(a) defines the crime of bias intimidation and provides,

in relevant part, 4

             [a] person is guilty of the crime of bias intimidation if
             he commits, attempts to commit, conspires with another
             to commit, or threatens the immediate commission of
             an offense specified in chapters 11 through 18 of Title
             2C of the New Jersey Statutes; N.J.S.2C:33-4;
             N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5,



4
   We note that our Supreme Court deemed N.J.S.A. 2C:16-1(a)(3) to be
unconstitutionally vague and violative of due process. See State v. Pomianek,
221 N.J. 66, 91-92 (2015).
                                                                         A-1400-17T4
                                        10
            (1) with a purpose to intimidate an individual or group
            of individuals because of race, color, religion, gender,
            disability, sexual orientation, gender identity or
            expression, national origin, or ethnicity; or

            (2) knowing that the conduct constituting the offense
            would cause an individual or group of individuals to be
            intimidated because of race, color, religion, gender,
            disability, sexual orientation, gender identity or
            expression, national origin, or ethnicity[.]

Additionally, N.J.S.A. 2C:4-2 provides,

            [e]vidence that the defendant suffered from a mental
            disease or defect is admissible whenever it is relevant
            to prove that the defendant did not have a state of mind
            which is an element of the offense. In the absence of
            such evidence, it may be presumed that the defendant
            had no mental disease or defect which would negate a
            state of mind which is an element of the offense.

Significantly, this is not a case where defendant was improperly foreclosed from

pursuing a late-presented diminished capacity defense. Cf. State v. Lambert,

275 N.J. Super. 125 (App. Div. 1994).

      We agree with the trial judge that the record, including Dr. Paul's report,

does not necessarily support that defendant has a mental disease or defect that

would negate the mens rea for the offense. See Galloway, 133 N.J. at 648-49.

In that regard, at the time of defendant's competency examination, he was not

delusional and denied ever hearing voices.         Dr. Paul documented that

defendant's responses were "mostly relevant, coherent, and focused with no

                                                                         A-1400-17T4
                                      11
loosening of association." Defendant described the incidents as an ongoing

dispute with the neighbor that he justified because defendant as a Haitian

immigrant had been subjected to racial taunts.           Moreover, unlike the

circumstances in Galloway, the court here did not preclude defendant from

pursuing a defense of diminished capacity. Rather, for years defendant simply

and unequivocally chose not to pursue this defense, only changing his position

after trial had already commenced. For these reasons, we affirm the trial judge's

decision denying defendant's motion for an adjournment so that he could pursue

a diminished capacity defense, which the judge exercised in her sound

discretion. See Smith, 87 N.J. Super. at 105.

      To the extent we have not specifically addressed any remaining arguments

raised by the parties, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                      12
