NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

The State appeals from the December 2, 2013 order of the Law Division dismissing two indictments against defendant Ronald K. Barnes on the ground that he is not competent to stand trial. Having considered the record on appeal and the applicable law, we affirm.

On July 22, 2009, a Warren County Grand Jury indicted and charged defendant with second-degree burglary, N.J.S.A. 2C:18-2b(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1a(1)/2C:14-2a(3) (count three); and first-degree robbery, N.J.S.A. 2C:15-1a(1) (count four).1 On May 18, 2011, the Grand Jury indicted and charged defendant in a separate matter with third-degree terroristic threats, N.J.S.A. 2C:12-3a.2

With regard to the first set of charges, the State alleged that defendant forced his way into the apartment of the victim, a sixty-eight-year-old woman. Defendant beat the woman until she was unconscious, dragged her into a bedroom, and attempted to have sexual intercourse with her. Defendant also took $150 in cash and the victim's credit cards from the apartment. The police arrested defendant on October 2, 2008 and he gave a statement confessing to each of the offenses. Defendant also admitted to having a "verbal argument" with another woman on September 1, 2008, and that statement formed the basis for the second indictment charging defendant with making terroristic threats.

On September 29, 2009, defendant's attorney moved to have defendant "examined for purposes of [determining his] competency to stand trial." The court granted the motion and defendant was evaluated by Christine Joseph, Ph. D. In a January 26, 2010 report, Dr. Joseph determined that defendant was not competent to proceed with the defense of his criminal charges. Testing revealed that defendant, who was twenty-one years old, "had a full scale IQ score of 57, verbal IQ of 59 and performance IQ of 63 all of which fall in the intellectually deficient range (mental retardation range)." Defendant had "very limited vocabulary and he was unable to understand and learn much of the required information for competence to stand trial."

In addressing the question of "whether it is substantially probable that [defendant] will regain [his] competence in the foreseeable future[,]" Dr. Joseph concluded that defendant "has long-standing cognitive problems that were documented during pre-school and later years and there has been little or no improvement over the years. His full scale IQ falls in the mentally deficient range and this will not change in the foreseeable future." Dr. Joseph opined that defendant "requires a controlled environment where he can be monitored for abstinence from substance abuse and interventions can be provided when he exhibits inappropriate behavior." Dr. Joseph also "strongly recommended" that a referral be made to the Division of Developmental Disabilities (DDD).

The court conducted a hearing on February 4, 2010 and the assistant prosecutor stated that the "contents, results and conclusions" set forth in Dr. Joseph's report "are not contested." Based upon Dr. Joseph's finding that defendant's "history of aggressive, violent behavior that predates the incident charge as well as a history of substance abuse and together with his cognitive limitations ... make him a high risk for dangerous behavior towards others and possibly toward himself in the foreseeable future[,]" the court committed defendant "to the custody of the Commissioner of the Department of Human Services to be placed in an appropriate institution." The Commissioner placed defendant at the Anne Klein Forensic Center (AKFC).

Over the course of the next three years and ten months, the court conducted regularly scheduled hearings to assess defendant's competence to stand trial. In an order filed on August 9, 2010, the court again found that defendant "lacks the fitness to proceed to trial and that [he] is so dangerous to self, others or property as a result of mental illness as to require institutionalization," and continued his commitment.

On July 13, 2011, defendant's assigned psychiatrist, Dariusz Chacinski, M.D., provided a report to the court in which he opined that defendant was not competent to stand trial. Dr. Chacinski stated that defendant

Dr. Chacinski reported that defendant "is exhibiting psychiatric symptoms such as learning problems so further education is necessary. It is recommended that [defendant] attend the competency restoration group."

Dr. Chacinski later explained that, in the competency restoration group, the patients are "repeatedly given information how the court operates." The goal is to teach the patients enough information about the court system so that they can assist in their own defense at a trial. The patients are shown videos of court proceedings and given roles to play in mock trials conducted by staff. Much of the learning, however, occurs through having the patients learn rote answers to standard questions about the court system so that when they are questioned, for example about the role of the prosecutor at a trial, they are able to provide an appropriate response.

On August 1, 2011, the court3 conducted a competency hearing. The State introduced Dr. Chacinski's report and the court again found defendant incompetent to stand trial and in continued need of institutionalization.

In a November 16, 2011 report, Dr. Chacinski stated that defendant

Based upon these findings, Dr. Chacinski opined that defendant was "considered competent to stand trial at this time."

A mere nineteen days later, however, Dr. Chacinski sent a follow-up letter to the court advising that defendant was no longer competent. In the December 5, 2011 letter, Dr. Chacinski stated:

As a result, the court adjourned the next scheduled hearing so that Dr. Chacinski could "prepare a full report."

On January 29, 2012, Dr. Chacinski reported the results of his latest competency evaluation. He stated:

Dr. Chacinski again found that defendant "meets involuntary civil commitment criteria" and he recommended "[l]ong term treatment in a structured treatment setting." In a letter to the court on April 10, 2012, Dr. Chacinski stated, "it is still my opinion that [defendant] will not be restored to competency in the foreseeable future. There is also no change in his mental status exam."

The court conducted a competency hearing on July 16, 2012, and Dr. Chacinski was the only witness who testified. After the hearing, the judge continued to hold the criminal charges in abeyance. However, the judge noted that defendant was "mildly retarded [and] has an IQ of 57. That's not going to change." With regard to the competency restoration group classes defendant attended, the court observed that defendant was taught "a catechism. He is given questions [about the court system] and taught what the answers are." However, because defendant was unable "to retain these answers for more than a few weeks," the judge found that "defendant's prospects for gaining competency are non-existent." Accordingly, the judge ordered the parties to brief the issue of whether the charges against defendant should be dismissed pursuant to N.J.S.A. 2C:4-6c.4

In a September 21, 2012 report, Dr. Chacinski again concluded that defendant "will not be restored to competency in the foreseeable future." On January 15, 2013, Dr. Chacinski advised the court that defendant

The judge conducted another review hearing on February 4, 2013 and the State again called Dr. Chacinski as its only witness. Dr. Chacinski explained that "about a week" before his formal competency evaluations, the doctor reviewed the questions he would ask about the court system with defendant, and the appropriate answers defendant should give. At the formal evaluation, however, defendant was not able to provide the appropriate responses because he could no longer remember them. There was no medication that could be prescribed to help defendant obtain competency and, because defendant was unable to remember what he learned during the competency training, even for a short period of time, the doctor determined it would not be helpful for defendant to repeat that training. There was no evidence that defendant was trying "to fake" his condition or "malingering." Dr. Chacinski therefore opined that "I don't believe that the patient will be restored" to competency.

After hearing argument, the judge rendered an oral decision on February 25, 2013, found defendant incompetent to stand trial, and dismissed the two indictments. In her decision, the judge made specific findings on each of the seven factors set forth in N.J.S.A. 2C:4-6c. However, after permitting additional oral argument, the judge reconsidered and decided to hold another competency hearing and take additional testimony from

Dr. Chacinski before making a final decision.

In an August 27, 2013 report, Dr. Chacinski opined that defendant remained incompetent to stand trial and that he "will not be restored to competency in the foreseeable future." At the September 18, 2013 hearing, the State again called Dr. Chacinski as its only witness. The doctor testified that defendant was still not able to retain anything he had learned in the competency restoration classes. Dr. Chacinski stated that DDD might be able to provide treatment to defendant, but he had no knowledge of what programs might be available through that agency, and he believed DDD's programs were designed for patients who did not "know how to feed themselves, go to the store, how to [behave], social activities, they teach them how to survive." The State did not call any witness to testify that DDD had a competency restoration training program or that defendant's competency could be restored through such a program.

On October 25, 2013, the judge rendered an oral decision finding defendant incompetent to stand trial and dismissing the two pending indictments. On December 2, 2013, she issued a confirming order and a written decision in which she thoroughly set forth her detailed findings of fact and conclusions of law on each of the seven factors a judge must consider under N.J.S.A. 2C:4-6c.

With regard to the first factor, "the defendant's prospects for regaining competency," the judge found that defendant was incompetent and that, based on the testimony of Dr. Chacinski, "who was the [S]tate's witness and only witness," further "treatment cannot cure defendant's cognitive impairment." Defendant was only able to retain the appropriate responses to the questions about the court system he was asked "for a finite period of time, which lasted less than three weeks." In response to the State's contention that defendant should be referred to a DDD facility, the judge found:

Moving to the second factor, "the period of time during which the defendant has remained incompetent," the judge found that defendant had been incompetent "since at least the time of his first competency evaluation, January 2010." She concluded "defendant likely was never competent during the pendency of his charges because he had no understanding of the import of the answers he was giving, or abstractions like burden of proof, the right to remain silent, or voluntary guilty plea[s]."

As to "the nature and extent of the defendant's institutionalization," the judge found that defendant had been institutionalized in AKFC since January 2010 and attended a competency restoration class "and other classes offered to the inpatient population." He had not received "occupational therapy, living skills therapy and other counseling that he would receive at a DDD facility. However, his circumstances at AKFC appear more treatment-oriented and supportive than circumstances he would encounter in prison." Based upon Dr. Chacinski's consistent expert testimony, the judge stated "that defendant likely qualifies for involuntary civil commitment, and therefore faces the possibility of placement in a psychiatric hospital if his charges are dismissed."

The judge next considered "the nature and gravity of the crimes charged;" found they were "violent and shocking[;]" and recounted each of the State's allegations concerning the offenses. With regard to factor five, "the effects of delay on the prosecution," the judge noted that the victim "is elderly" and that "witnesses' memories grow dim and evidence may be lost over time." However, the State had "not indicated that any witnesses or evidence have become unavailable over the pendency of the case." On the other hand, the judge found that "defendant's cognitive impairment affects his ability to help with his defense, and has done so since the beginning of the case[.]" Thus, under factor six, "the effects of delay on the defendant, including any likelihood of prejudice to the defendant in the trial arising out of the delay[,]" the judge concluded "there is no indication that [defendant's] ability to help with his defense will worsen over time because it was negligible from the beginning."

Finally, the judge addressed factor seven, "the public interest in prosecuting the charges." She stated "[i]t is a weighty factor in favor of the [S]tate because of the nature of the crime, the victim's age and vulnerability, and the fact that it was a home invasion."

"Looking at the totality of the factors," the judge found that the first, second, and third factors weighed in favor of dismissing the indictments, while the remaining factors favored holding the charges in abeyance. However, the judge concluded the indictments should be dismissed because the record clearly demonstrated that defendant would never be restored to competency and therefore, the first factor had to be given significant weight. Otherwise, defendant would be

Accordingly, the judge dismissed the indictments and ordered that defendant "be immediately evaluated for involuntary civil in-patient commitment by" AKFC. This appeal followed.

On appeal, the State raises the following contentions:

"The test for competency to stand trial arises from basic concepts of due process." State v. Purnell, 394 N.J.Super. 28, 47 (App. Div. 2007). When a defendant is tried while incompetent to stand trial, that defendant has been "deprived of his due process right to a fair trial." State v. Cecil, 260 N.J.Super. 475, 480 (App. Div. 1992), certif. denied, 133 N.J. 431 (1993). The State has the burden of proving competence to stand trial by a preponderance of the evidence. State v. Lambert, 275 N.J.Super. 125, 129 (App. Div. 1994). At a minimum, the State must show that the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and ... a rational as well as factual understanding of the proceedings against him." Purnell, supra, 394 N.J. Super. at 47 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960)).

The test for competency to stand trial in New Jersey is codified in N.J.S.A. 2C:4-4a, which provides: "No person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures." The proofs must establish that the defendant understands his presence in a courtroom facing criminal charges; the role of the judge, prosecutor and defense attorney; his rights and the consequences of waiver of the same; and his ability to participate in his own defense. N.J.S.A. 2C:4-4b.

Our review of a trial court's competency determination is "`typically, and properly, highly deferential.'" State v. M.J.K., 369 N.J.Super. 532, 548 (App. Div. 2004) (quoting State v. Moya, 329 N.J.Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000)), appeal dismissed, 187 N.J. 74 (2005). We do not review the factual record to determine how we would decide the matter if we were "the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Moreover, a trial court's determination on the subject of competency will be sustained if there is sufficient supporting evidence in the record. Purnell, supra, 394 N.J. Super. at 50.

As already noted, when the trial court finds that a defendant is not competent to stand trial, it must next apply the seven factors set forth in N.J.S.A. 2C:4-6c in order to determine whether the criminal charges should be held in abeyance or dismissed. Similar to the standard of review applied to a court's determination of competency, a decision to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. State v. Warmbrun, 277 N.J.Super. 51, 59-60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

We have considered the State's contentions in light of the record and applicable legal principles and conclude the judge did not abuse her discretion in finding defendant incompetent and dismissing the two indictments pursuant to N.J.S.A. 2C:4-6c. We affirm substantially for the reasons expressed by the judge in her well-reasoned written opinion.

The judge's detailed findings of fact and conclusions of law are fully supported by the record. The only expert who testified, Dr. Chacinski, consistently opined that defendant was not competent and would "not be restored to competency in the foreseeable future." There was no treatment regimen available to address defendant's condition; he simply lacked the cognitive ability, due to his IQ of 57 and mental retardation, to ever understand the proceedings against him or assist in his own defense. Thus, the judge properly gave great weight in her analysis to the first factor under N.J.S.A. 2C:4-6c. Contrary to the State's contention, the judge did not ignore the other six factors. She carefully considered each of them and explained why, "[l]ooking at the totality of the factors," the indictments had to be dismissed. We discern no basis for second-guessing the judge's comprehensive analysis.

The State alleges that the Department of Human Services failed to "make every effort to restore ... defendant to competency" and that the judge should have ordered the Department to transfer defendant to DDD for treatment. We disagree. At each competency hearing, the State called Dr. Chacinski as its only witness and it presented no other expert testimony or reports. Thus, there is insufficient evidence in the record to support the State's contention that the Department's efforts were not adequate. As Dr. Chacinski repeatedly explained, defendant's condition prevented him, and would continue to prevent him, from retaining any information taught to him about the court process. Thus, there was no basis for repeating the competency restoration class either at AKFC or a DDD facility. Similarly, the State presented no expert testimony indicating what additional services defendant could receive at a DDD facility that would restore him to competency under N.J.S.A. 2C:4-4a.

Affirmed.