RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3090-18T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

R.G.,

Defendant-Respondent.

____________________________

Argued June 4, 2019 – Decided July 31, 2019

Before Judges Fisher, Suter and Enright.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Somerset County, 

Indictment No. 17-04-0189.

Paul Henry Heinzel, Assistant Prosecutor, argued the 

cause for appellant (Michael H. Robertson, Somerset 

County Prosecutor, attorney; Paul Henry Heinzel, of 

counsel and on the briefs).

Joseph J. Russo, Deputy Public Defender, argued the 

cause for respondent (Joseph E. Krakora, Public 

Defender, attorney; Joseph J. Russo, on the brief).

Alexander R. Shalom argued the cause for amicus 

curiae American Civil Liberties Union of New Jersey 

(American Civil Liberties Union of New Jersey 

Foundation, attorneys; Alexander R. Shalom and 

Jeanne M. Locicero, on the brief).

APPROVED FOR PUBLICATION

July 31, 2019

APPELLATE DIVISION
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The opinion of the court was delivered by 

SUTER, J.A.D.

The State appeals the January 7, 2019 order of the trial court that denied 

its request for an order to involuntarily medicate defendant R.G. to restore him 

to competency to stand trial. We affirm the trial court's order. We agree with 

the trial court that the State did not satisfy the test under Sell v. United States, 

539 U.S. 166 (2003), because the first factor is determined by consideration of 

defendant's probable sentence not simply the maximum sentence exposure for 

the offense charged. The trial court also must consider the potential effect of 

the medication on defendant's right to a fair trial when applying Sell. Because 

the Sell test was not satisfied, we have no occasion to determine whether our 

State Constitution would afford a defendant greater protection of individual 

liberty or privacy rights. 

I

Defendant's mother was attending a wedding in California when she asked 

the police to check on her husband's welfare because she had not heard from 

him. Defendant answered the door when the police arrived dressed only in a 

blanket. The police inquired about his father. Defendant pointed to the floor 

where his father was lying. A pool of blood was near his father's mouth. He 
3

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had vomit on his face, was breathing but with difficulty, and had a mild pulse. 

There were no visible signs of trauma. Defendant told the police his father had 

been laying there for about twelve to twenty-four hours. Defendant was waiting 

to summon help because his father had a similar gastrointestinal bleed in the 

past and recovered. Defendant also told the police illogical things about 

developing weapons for the government. Defendant's father died at the hospital 

the next day of natural causes. 

Defendant was charged with third-degree neglect of an elderly or disabled 

person, N.J.S.A. 2C:24-8(a). He remained in jail from mid-December 2016 until 

the end of May 2017, when his bail was reduced and he was released. More 

than eight months later, and following a request by his attorney, the trial judge

entered an order under N.J.S.A. 2C:4-5(a)(2) that required defendant to take a 

fitness to proceed (competency) examination. The examining psychologist 

recommended conducting the examination in a hospital. 

On June 1, 2018, defendant was remanded to the Somerset County Jail 

without bail and later admitted to Trenton Psychiatric Hospital (TPH) for the 

competency evaluation that was conducted in October 2018. He was found not 

competent to stand trial. To our knowledge, he remains a patient at TPH.
4

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In October 2018, the State filed a motion for an order to require defendant 

to be involuntarily medicated because defendant refused to take antipsychotic

medication voluntarily. The State claimed it had an important interest in 

restoring defendant to competence, that he would likely become competent with 

medication and that medication was in his best interest.

At the competency hearing in December 2018, Dr. Jonathan L. Rapaport, 

a forensic psychologist, testified, based on his examination, that defendant had 

a delusional disorder and psychosis because he believed his father was still alive

even though he had been shown the autopsy photographs. Defendant's mental 

illness was impairing his ability to assist his attorney with a defense. Dr. 

Rapaport testified defendant was not competent to stand trial. 

He recommended steps to restore defendant to competency: defendant 

should attend a competency restoration group at TPH to assist in understanding 

the legal process and take antipsychotic medication. Dr. Rapaport opined that 

medication would "help greatly" to alleviate defendant's psychosis and "very 

likely" improve defendant's mental state. Defendant was not participating in 

any groups at TPH. Although defendant remained competent to decide his own 

medical issues, he was refusing to take any antipsychotic medication. 
5

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Dr. Rapaport testified the medication was a necessary treatment for 

defendant and the lack of medication was preventing him from becoming 

competent to stand trial. He claimed that defendant "possibly" was a danger to

himself or others because he had become physically agitated when they were 

discussing the medication issue, and because he allegedly had a history of 

assault and domestic violence. Dr. Rapaport testified that medication would 

help defendant's delusions "to gradually dissipate" although there was "no 

guarantee." Defendant's psychosis was severe. Dr. Rapaport was of the view

that although defendant's participation in group therapy would be helpful, 

antipsychotic medication was "necessary."

Dr. Yves George Dubois, an attending psychiatrist at TPH, also examined 

defendant. He testified that defendant did not have the mental capacity to stand 

trial. Defendant had a delusional disorder with a "disorganized" thought process

and "bizarre" thinking. With this "chronic psychosis," defendant was "losing 

brain cells" that eventually could impair his memory and affect his activities of 

daily living. Defendant could become dangerous. Dr. DuBois recommended 

that defendant take medications such as Haldol or Prolixin to gain competence 

to proceed to trial and for his mental health. Either medication was medically 

appropriate for his condition. Because Prolixin could cause a rise in "blood 
6

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pressure, weight gain [and] diabetes," Dr. Dubois recommended prescribing 

Haldol. 

He testified that both antipsychotic medications could cause "abnormal 

movement, like shaking, tremors" and "rigidity," but there were other 

medications to control that. In his opinion, the side effects from the medication 

would not undermine the fairness of a trial. For drowsiness, he suggested 

decreasing the dosage. He testified the medication would not prevent 

defendant's rapid reaction to events that happened on the stand. Dr. Dubois 

acknowledged that Haldol could decrease defendant's ability to express 

emotions, but he testified, "we have other medication to counteract that and we 

can also decrease the dosage."

Dr. Dubois testified that defendant was becoming more delusional

although he was not declining cognitively, meaning that defendant could 

appreciate the necessity to take medication to improve his life. He was not 

violent. He did not pose an imminent danger at TPH. Because of this, Dr. 

Dubois could not administer the antipsychotic medication without defendant's

consent or a court order.

Dr. Dubois testified it was in defendant's best medical interest to take the 

medication. He thought there was a reasonable probability the medication 
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A-3090-18T3

would enable defendant to participate in a trial. In his view, therapy alone would 

not be enough. 

The trial court continued defendant's commitment at TPH for another 

ninety days.1 With respect to the State's pending motion to involuntarily 

medicate defendant, the parties were ordered to submit additional briefing on 

whether there was an important government interest at stake that would require 

defendant's involuntary medication. The court noted the doctors both testified 

that medication would likely restore defendant to competency, and that 

medication was necessary and was medically appropriate. 

On January 7, 2019, the trial court denied the State's motion to medicate 

defendant involuntarily. In its written opinion, the trial court applied the four 

factors outlined by the Supreme Court in Sell, even though it was "hesitan[t] to 

allow for the practice of involuntary medication of defendants for restoration in 

the absence of any clear authority in New Jersey," and because it questioned the 

constitutionality of the practice under our State's Constitution. Nonetheless, the 

trial court found the State had not proven it had an important governmental 

 

1

 A subsequent competency review hearing was held on March 28, 2019, where 

the court declined to dismiss the charges at that time. See N.J.S.A. 2C:4-6(c) 

(providing that where a defendant "has not regained his fitness to proceed within 

three months, the court shall hold a hearing on the issue of whether the charges 

against him shall be dismissed with prejudice or held in abeyance"). 
8

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interest at stake as required by the first factor under Sell, 539 U.S. at 180. The 

trial court reasoned that defendant had a presumption of non-incarceration,

having been charged with a third-degree offense and having no prior 

convictions,

2

and "would likely receive a probationary sentence if convicted." 

Moreover, the court noted that defendant had been at TPH longer than his likely 

sentence if convicted. His "charges appear[ed] to have stemmed from the nature 

of his delusions" and he may have been "suffering from a psychotic episode at 

the time." Defendant also remained subject to confinement at TPH. All of these 

factors lessened the governmental interest to the point that the court would not 

order involuntary medication. The court found that the other factors under Sell

had been established.

The State filed a motion for leave to appeal. While that was pending, the 

trial court supplemented its written decision to address issues and cases the State 

presented in its motion for leave to appeal, which it had not raised earlier. The 

court did not agree with the State's argument that the first factor under Sell—the 

importance of the State's interest—should be determined based solely on the 

maximum sentence authorized for the offense charged. The court rejected this

in favor of a probable sentence approach because New Jersey's Constitution 

 

2 See N.J.S.A. 2C:44-1(e).
9

A-3090-18T3

"generally affords greater protections of an individual's liberty than provided for 

in the Federal Constitution." The State newly argued that defendant's crime 

constituted an act of domestic violence and that a presumption of incarceration 

applied. The court rejected the argument that all crimes of domestic violence

would satisfy the seriousness factor under Sell, opting instead for a case-by-case

approach. The State did not present evidence that defendant was convicted of

domestic violence in the past, which rendered aggravating factor fifteen3

inapplicable to this case. The trial court concluded that even if the new 

arguments by the State had been made previously, "they would not have been 

determinative of the outcome of the State's motion." 

In March 2019, we granted the State leave to appeal the trial court's 

January 7, 2019 order, and allowed supplemental briefing. We subsequently

granted the American Civil Liberties Union of New Jersey's request to 

participate as amicus curiae. 

On appeal, the State argues that it has a great interest in prosecuting this 

case. It contends it has satisfied all the required factors under Sell for an order 

 

3 Reference is to N.J.S.A. 2C:44-1(a)(15) (providing that an aggravating 

circumstance for sentencing is an offense constituting an act of domestic 

violence and "the defendant committed at least one act of domestic violence on 

more than one occasion").
10 A-3090-18T3

to medicate defendant involuntarily to restore him to competence to stand trial. 

Amicus curiae argues that defendant has a significant liberty interest in bodily 

integrity protected by both the Federal and State Constitutions; that the State

Constitution prohibits any forced medication of a non-dangerous defendant just 

to restore him to competency to stand trial; and that in determining whether to 

involuntarily medicate defendant, the trial court must take into consideration the 

impact that medication will have on defendant's right to a fair trial. 

II

A

We consider this issue in the context of decisions by the United States

Supreme Court that have addressed the issue of involuntary medication of 

prisoners with mental illness. In Washington v. Harper, 494 U.S. 210 (1990), a 

Washington State regulation allowed for the involuntary medication of a

convicted offender when "the mentally ill inmate [was] 'gravely disabled' or 

. . . present[ed] a 'serious likelihood of harm' to himself or others . . . ." Id. at 

220. In affirming the regulation against a due process challenge, the Court 

recognized that Harper had a "significant liberty interest in avoiding the 

unwanted administration of antipsychotic drugs under the Due Process Clause 

of the Fourteenth Amendment." Id. at 221-22 (citing Vitek v. Jones, 445 U.S. 
11 A-3090-18T3

480, 491-94 (1980); Youngberg v. Romeo, 457 U.S. 307, 316 (1982); Parham v. 

J.R., 442 U.S. 584, 600-01 (1979)). The Court observed that "[t]he forcible 

injection of medication into a nonconsenting person's body represents a 

substantial interference with that person's liberty." Id. at 229 (citing Winston v. 

Lee, 470 U.S. 753 (1985); Schmerber v. California, 384 U.S. 757, 772 (1966)). 

It also took note of the possible side effects of the medications.4 After 

considering the competing individual and State interests, the Court held that 

"given the requirements of the prison environment, the Due Process Clause 

permits the State to treat a prison inmate who has a serious mental illness with 

antipsychotic drugs against his will, if the inmate is dangerous to himself or 

others and the treatment is in the inmate's medical interest." Id. at 227. The 

Court found that the procedures under the regulation afforded the inmate 

adequate procedural due process. Id. at 228.

In Riggins v. Nevada, 504 U.S. 127 (1992), a defendant appealed his 

conviction for murder and robbery, claiming a due process violation because he 

 

4

 These can include "acute dystonia, a severe involuntary spasm of the upper 

body, tongue, throat, or eyes"; "akathesia (motor restlessness, often 

characterized by an inability to sit still); neuroleptic malignant syndrome (a 

relatively rare condition which can lead to death from cardiac dysfunction)"; and 

"[t]ardive dyskinesia . . . a neurological disorder, irreversible in some cases, that 

is characterized by involuntary, uncontrollable movements of various muscles, 

especially around the face." Id. at 229-30.
12 A-3090-18T3

was required to take certain psychotropic medications during his trial although 

he had requested to terminate their administration. Riggins claimed he was 

denied due process because of the effect of the drugs on his demeanor and mental 

state during trial, while the State contended the drugs were needed to maintain 

his competence to stand trial. Id. at 133.

The Court considered its decision in Harper that "forcing antipsychotic

drugs on a convicted prisoner is impermissible absent a finding of overriding 

justification and a determination of medical appropriateness," and concluded

that the "Fourteenth Amendment affords at least as much protection to persons 

the State detains for trial." Id. at 135 (citing Bell v. Wolfish, 441 U.S. 520, 545 

(1979); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)). Had the State 

proven "that treatment with antipsychotic medication was medically appropriate 

and, considering less intrusive alternatives, essential for the sake of Riggins'

own safety or the safety of others," it would have satisfied due process. Ibid.

(citing Harper, 494 U.S. at 225-26; Addington v. Texas, 441 U.S. 418 (1979)).

The Court reversed the convictions because the trial court failed to make 

adequate findings to support "the need for this [medication and did not make] 

any findings about reasonable alternatives." Id. at 136. It also did not make 

findings that "safety considerations or other compelling concerns outweighed 
13 A-3090-18T3

Riggins' interest in freedom from unwanted antipsychotic drugs." Ibid. This 

may have infringed upon his right to a fair trial, noting that the side effects from 

the drugs may have "had an impact upon not just Riggins' outward appearance, 

but also the content of his testimony on direct or cross examination, his ability 

to follow the proceedings, or the substance of his communication with counsel."

Id. at 137. The Court held that "[b]ecause the record contain[ed] no finding that 

might support a conclusion that administration of antipsychotic medication was 

necessary to accomplish an essential state policy," the Court had "no basis . . . 

for saying that the substantial probability of trial prejudice in this case was 

justified." Id. at 138.

In a concurring opinion, Justice Kennedy voiced concerns about the 

effects of the drugs on a defendant's right to a fair trial, expressing that the "side 

effects seems to me to render involuntary administration of the drugs by 

prosecuting officials unacceptable absent a showing by the State that the side 

effects will not alter the defendant's reactions or diminish his capacity to assist 

counsel." Id. at 143 (Kennedy, J., concurring).

B

The Court addressed the issue of involuntary medication—this time for a 

defendant who was not convicted—in the Sell case. 539 U.S. at 166. Sell was 
14 A-3090-18T3

charged with mail fraud, Medicaid fraud, money laundering and attempted 

murder. Id. at 170. He was found not competent to stand trial. Id. at 171. The 

State recommended that he take antipsychotic medication to restore him to 

competency to proceed. Ibid. When he refused, the State sought permission

from the court to require Sell to be involuntarily medicated. Ibid.

In Harper and Riggins, the Supreme Court noted that:

the Constitution permits the [g]overnment involuntarily 

to administer antipsychotic drugs to a mentally ill 

defendant facing serious criminal charges in order to

render that defendant competent to stand trial, but only 

if the treatment is medically appropriate, is 

substantially unlikely to have side effects that may 

undermine the fairness of the trial, and, taking account 

of less intrusive alternatives, is necessary significantly 

to further important governmental trial-related 

interests. 

[Id. at 179.]

The Court identified four factors that had to be satisfied before a court 

could order involuntary medication to restore a defendant to competency to 

stand trial for serious, but nonviolent crimes. Id. at 180-81. 

"First, a court must find that important governmental interests are at stake. 

The [g]overnment's interest in bringing to trial an individual accused of a serious 

crime is important." Id. at 180. The Court said, however, that "special 

circumstances" might lessen the importance of the State's interest. Ibid. These 
15 A-3090-18T3

could include the length a defendant has been confined because that "would 

diminish the risks that ordinarily attach to freeing without punishment one who 

has committed a serious crime." Ibid. A lengthy confinement may also make it

difficult to prosecute a defendant. Ibid. The "potential for future confinement"

and the length of time a defendant had been confined, "for which he would 

receive credit toward any sentence ultimately imposed . . . ." all affected the 

State's interests. Ibid. The Court recognized the State "has a concomitant, 

constitutionally essential interest in assuring that the defendant's trial is a fair 

one." Ibid. 

The second Sell factor requires a trial court to conclude that involuntary 

medication "is substantially likely to render the defendant competent to stand 

trial" and that it "is substantially unlikely to have side effects that will interfere 

significantly with the defendant's ability to assist counsel in conducting a trial 

defense, thereby rendering the trial unfair." Id. at 181 (citing Riggins, 504 U.S. 

at 142-45 (Kennedy, J., concurring)). 

The third factor requires the State to show that medication is "necessary 

to further those interests" and that "less intrusive treatments are unlikely to 

achieve substantially the same results." Ibid.
16 A-3090-18T3

The fourth factor requires the trial court to "conclude that administration 

of the drugs is medically appropriate, i.e., in the patient's best medical interest

in light of his medical condition." Ibid.

The Court made clear that the instances where these factors would be met 

"may be rare."

5

 Id. at 180. Because they were not satisfied in Sell, the Court 

reversed the order that required involuntary medication and remanded the case. 

Id. at 186.

The Court emphasized the concerns it had raised in Riggins about the 

effects of antipsychotic medication. "Whether a particular drug will tend to 

sedate a defendant, interfere with communication with counsel, prevent rapid 

reaction to trial developments, or diminish the ability to express emotions are 

matters important in determining the permissibility of medication to restore 

competence . . . ." Id. at 185 (citing Riggins, 504 U.S. at 142-45 (Kennedy, J., 

concurring)). The Court remanded Sell to the trial court for consideration of 

these factors.

 

5 Sell does not expressly address the evidentiary standard needed to establish 

the four factors. Because the Court said the factors would be satisfied rarely, 

we agree with United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004), that 

the Sell "findings must be supported by clear and convincing evidence."
17 A-3090-18T3

III

We have not previously addressed whether a defendant charged with a

crime, who is not competent to stand trial but who is competent to make medical 

decisions and has refused to take antipsychotic medication, can be involuntarily 

medicated to restore competency to stand trial.

The issue was addressed only briefly in a Law Division opinion. State v. 

Otero, 238 N.J. Super. 649 (Law Div. 1989). And, while we are mindful other 

states have enacted legislation to guide trial courts in these situations, 6 New 

Jersey has not. Nevertheless, because we are satisfied the State's application to 

compel medication here fails under the Sell test, we need not determine whether 

our State Constitution provides greater individual protection than does the 

Federal Constitution described in Sell. Instead, we reject the State's arguments 

because we agree with the trial judge's determination that Sell's first factor is 

not informed by defendant's maximum exposure but by defendant's probable 

sentence if convicted. A trial court, in applying the Sell test, should also 

 

6

 Cal. Penal Code § 1370 (California); Colo. Rev. Stat. § 16-8.5-112 (Colorado); 

Conn. Gen. Stat § 54-56d (Connecticut); 405 Ill. Comp. Stat. Ann. 5/2-107.1 

(Illinois); Me. Rev. Stat. Ann. tit. 15 § 106(3)-(4) (Maine); Md. Code Ann. 

Health-Gen. § 10-708(b) (Maryland); Ohio Rev. Code. Ann. § 2945.38(B)(1)(C) 

(Ohio); Or. Rev. Stat. Ann. 2945.38 (Oregon); VT. Stat. Ann. tit. 18 § 7629 

(Vermont); Wash. Rev. Code Ann. § 10.77.092 (Washington); Wis. Stat. Ann. 

§ 971.17(3)(c) (Wisconsin); Wyo. Stat. Ann. § 7-11-303(e) (Wyoming).
18 A-3090-18T3

consider the effects of the medication on a defendant's right to a fair trial. 

Medical experts should testify about how the medication is likely to affect a 

defendant's ability to communicate with counsel, to testify, to react rapidly to 

events in the trial, and to express emotions before the jury. See Sell, 539 U.S. 

at 185; see also Riggins, 504 U.S. at 137. The effect on physical appearance

also should be considered. See Riggins, 504 U.S. at 137. It then is for the trial 

court to determine if a defendant's right to a fair trial will be adversely affected. 

Under Sell, the State has an important interest in "bringing to trial an 

individual accused of a serious crime" but "special circumstances" might lessen 

the importance of the State's interest. 539 U.S. at 180. In arguing that there 

were no special circumstances that lessened the importance of the State's 

interest, the State urges us to consider that the maximum sentence for this thirddegree crime is five years, and that because this was a crime of domestic 

violence, the presumption of non-incarceration did not apply. 

The federal circuit courts have differed on how to apply the first factor

under Sell: some rely on the maximum sentence for the charges to evaluate if 

the crime is serious; others consider the defendant's probable sentence.7

 

7

 See, e.g., United States v. Gutierrez, 704 F.3d 442, 451 (5th Cir. 2013) 

(following the approach for determining seriousness of a crime utilized by the 
19 A-3090-18T3

We agree with the trial judge that Sell's first factor requires more than 

simple consideration of the maximum sentence. The Supreme Court made clear 

that a case-by-case approach is required. Sell, 539 U.S. at 180. If a trial court 

only needed to consider the maximum length of the sentence, the Court would 

not have mentioned the need to consider special circumstances—such as the 

length of confinement, the potential for future confinement and jail credits to be 

 

second, fourth, and tenth circuits, comparing the time the defendant has served 

pre-trial to the statutory maximum); United States v. White, 620 F.3d 401, 410-

11 (4th Cir. 2010) (explaining that notwithstanding the seriousness of a crime, 

special circumstances such as the time defendant has already been confined 

compared to his expected sentence, can reduce the State's interest in prosecuting 

a defendant); United States v. Nicklas, 623 F.3d 1175, 1178-80 (8th Cir. 2010) 

(considering whether the defendant had served close to or more than his 

probable sentence, to determine whether special circumstances militated against 

the government's interest in prosecuting the defendant); United States v. RuizGaxiola, 623 F.3d 684, 693-94 (9th Cir. 2010) (using the sentencing guideline 

range for an offense, rather than the statutory maximum, as the starting point for 

determining the seriousness of a crime); United States v. Green, 532 F.3d 538, 

549 (6th Cir. 2008) (utilizing the maximum statutory penalty for a crime as an 

objective means to assess seriousness); Gomes, 387 F.3d at 160-61 (finding that 

certain circumstances, such as the potential for a lengthy period of civil 

commitment which would diminish the risk of future crime, "may lessen the 

importance" of the State's interest in prosecuting a defendant); United States v. 

Weinberg, 743 F. Supp. 2d 234, 237 (W.D.N.Y. 2010) (providing that to 

determine whether there is an important government interest, courts should first 

consider the nature of the charge and the potential penalty, including the 

statutory maximum and the sentencing guidelines range for the offense, and 

then compare that to any period of pretrial incarceration). 
20 A-3090-18T3

applied toward sentencing—all of which could reduce the State's interest in 

prosecution. 

We agree with the trial court that special circumstances lessened the 

State's interest in this case. We have no reason to disagree with the trial court's 

analysis that defendant might receive a probationary sentence if treated as a 

third-degree offender, that his charges appeared to stem from his delusions and

he has remained at TPH longer than if convicted. The trial court correctly 

considered the length of time defendant was confined, his possible need for 

future confinement and potential jail credits.

We have every confidence that our criminal trial judges can evaluate a 

defendant's probable sentence based on the charges, the understanding of our 

sentencing guidelines and the application of probable aggravating and 

mitigating factors. This approach also is consistent with the Court's 

understanding that the need to medicate involuntarily to restore a defendant to 

competency will be rare, which is our expectation as well. 

Because we agree with the trial court that the State failed to satisfy the 

first factor under Sell, we affirm the trial court's order that denied the State's 

motion to require involuntary medication. We have no occasion to address 
21 A-3090-18T3

whether our State's Constitution would afford defendant greater liberty or 

privacy. 

Affirmed.