RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5526-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD R. LEONCINI,

Defendant-Appellant.

_______________________________

Argued February 6, 2017 – Decided

Before Judges Sabatino and Nugent.

On appeal from Superior Court of New Jersey, 

Law Division, Burlington County, Indictment 

No. 14-07-0697.

Jaime B. Herrera, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, attorney; 

Ms. Herrera, of counsel and on the briefs).

Jennifer B. Paszkiewicz, Assistant 

Prosecutor, argued the cause for respondent 

(Robert D. Bernardi, Burlington County 

Prosecutor, attorney; Ms. Paszkiewicz, of 

counsel and on the briefs).

PER CURIAM

Tried by a jury, defendant Richard R. Leoncini was found 

guilty of second-degree eluding, N.J.S.A. 2C:29-2(b). The trial 

NOT FOR PUBLICATION WITHOUT THE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.

March 1, 2017
2 A-5526-14T1

judge downgraded the conviction to a third-degree offense at 

sentencing and imposed a three-year flat custodial sentence.

On appeal, defendant raises two arguments in his brief:

POINT I

DEFENDANT WAS DEPRIVED OF HIS DUE PROCESS 

RIGHT TO A FAIR TRIAL BECAUSE DESPITE EVIDENCE 

THAT HIS MENTAL STATE HAD DECLINED SINCE THE 

OUTSET OF THE TRIAL, THE TRIAL COURT FAILED 

TO REEVALUATE DEFENDANT'S COMPETENCE.

POINT II

THE TRIAL COURT ERRED IN IMPOSING A PRISON 

SENTENCE WHERE DEFENDANT'S EXTENSIVE HISTORY 

OF MENTAL ILLNESS, HIS SUICIDAL TENDENCIES, 

AND HIS MEDICAL ISSUES OUTWEIGHED THE NEED FOR 

GENERAL DETERRENCE.

Having considered these arguments in light of the record and the 

applicable legal principles, we affirm.

I.

The factual scenario arises out of defendant's operation of 

his vehicle on February 1, 2014, and his related conduct on that 

day. The proofs at trial revealed the following sequence of 

events.

The Driving Episode

On the day in question, Mansfield Township Police Detective 

Daniel Ehnstrom was on duty around 6:30 p.m. when he witnessed a 
3 A-5526-14T1

white Chevrolet HHR make an illegal U-turn on Route 206. The 

detective, who was driving a marked patrol car in the opposite 

direction, turned around to pursue the Chevrolet. He activated 

the police car's emergency lights. Within "a few seconds," the 

detective caught up to the Chevrolet, but it continued going at 

the same speed.

The detective kept following the Chevrolet as it drove along 

the state highway. Attempting to catch the pursued driver's 

attention, Ehnstrom sounded his air horn and police siren, but the 

driver did not stop. Throughout the encounter, the driver 

essentially maintained the same speed.

As the detective's pursuit continued, the Chevrolet driver 

turned onto Route 68, a four-lane highway. Once on that highway, 

the driver began to swerve between lanes. He stuck his left hand 

out the window to wave at the police car, which Ehnstrom perceived 

as "an effort for me to pull up next to him." The driver approached 

the intersection at Nade Drive, and then, according to Ehnstrom,

ran the red light without slowing down. At the next red light at 

Mansfield Road East, Ehnstrom testified, the driver "slowed down 

a little bit," but still ran the red light. Further along, at the 

intersection with Route 537, the driver "appeared to hit the brakes 

and slow up," but did not stop at the red light.
4 A-5526-14T1

Ehnstrom testified that the driver wore camouflaged clothing 

and was heading in the direction of Fort Dix. Route 68 ultimately 

dead-ends into the entrance of that military base. The detective 

radioed dispatch "to notify the Department of Defense and the 

military personnel that we were headed in their direction in case 

there may be some sort of terrorist or some other concern."

Further down Route 68, the road narrowed into two lanes, one 

in each direction. The Chevrolet and the police car then came 

upon two other cars, which were stopped at a red light at the

Saylors Pond Road intersection. To get around those cars, the 

Chevrolet driver veered into the lane of oncoming traffic, again 

running a red light.

When the Chevrolet and the police car approached Fort Dix 

security checkpoint, the Chevrolet driver stopped his car and got 

out. Detective Ehnstrom observed that the driver was a "white 

male, probably approximately in his 50s, wearing a camouflage 

[basic military uniform], [and] kind of disheveled looking." The 

detective later identified the driver as defendant.

Detective Ehnstrom got out of his police car and approached 

defendant. He testified that defendant "complied and was 

handcuffed and was taken into custody." Defendant gave the 

detective his real name and did not try to mislead him.
5 A-5526-14T1

Fort Dix personnel apparently were in possession of 

defendant's driver's license, based on a previous interaction with 

him at the base earlier that day. According to Ehnstrom, "probably 

ten or twelve" security officers were stationed at the gate, 

instead of the usual two officers. The base employees had also 

constructed a temporary barricade.

Defendant's Account

Defendant presented a somewhat different narrative during his 

own trial testimony. According to his account, on February 1, 

2014, after watching a television show about American soldiers 

being wounded overseas, he "drove down to Fort Dix and . . .

started asking . . . questions." Defendant asserted that he was 

concerned about how the military "reinforce[s] the Humvees or why 

are all of our service personnel coming back with so many 

injuries."

Defendant acknowledged that he drove to Fort Dix wearing 

camouflage. Upon arrival, he asked an officer at the security 

booth several questions relating to his concerns about wounded 

service personnel. The security officer requested and obtained 

defendant's identification, which the officer kept. The officer 

told defendant he could not leave. According to defendant, this 

interaction made him nervous, so he got into his Chevrolet and 

left the base without his identification.
6 A-5526-14T1

Defendant drove away from Fort Dix onto Route 68 and turned 

onto Route 206. At that point, he realized he should not be 

driving without his license. According to defendant, he called 

either 4-1-1 or 9-1-1, and asked for a State Police dispatcher. 

He claimed that he asked for "backup" from the State Police to 

accompany him, "because [he] didn't know if [he] went back [to 

Fort Dix] what they were going to do."

While still on the phone, defendant turned his Chevrolet 

around by making a U-turn on Route 206. He claimed that he did 

not see a sign indicating such a U-turn was improper. At that 

point, he dropped his cell phone onto the car floor. He leaned 

over to try and pick it up. When he looked up again, defendant

noticed what he believed was the State Police "backup" that he had 

requested, driving behind him. According to defendant, he did not 

want to pull over because he did not possess his identification.

Defendant continued driving toward Fort Dix. He testified 

that he waved at the police vehicle following him "two or three"

times. Although he acknowledged driving through several red 

lights, defendant explained, "I was driving real slow. The officer 

that was behind me kept his distance. He wasn't driving 

aggressive. I wasn't driving aggressively." Defendant 

acknowledged that once he arrived at Fort Dix, he was arrested.
7 A-5526-14T1

Defendant explained at trial why he thought the police had 

followed him, and why he did not stop:

To stop me. I'm telling you he [the officer] 

had his lights on. He wanted to stop me. I 

wanted to get back to Fort Dix and make as big 

of a scene as possible so Fort Dix knew and 

the [S]tate [P]olice were there that they knew 

they were protected and there were people 

protecting them. I wasn't trying to harm 

anybody. I wasn't driving erratically. I 

slowed down and made sure all vehicles were 

clear of my path. I knew with the police 

officer's lights on behind me with his siren 

going that any vehicles in any intersections 

would slow down because there was an emergency 

vehicle approaching. 

[(Emphasis added).]

The Pretrial Proceedings

Following this incident, defendant was charged with seconddegree eluding. Defendant did not challenge through his counsel 

the legality of the motor vehicle stop. Instead, the pretrial 

proceedings focused on defendant's competency to stand trial.

At defendant's first court appearance on February 3, 2014, 

the judge attempted to set bail, but defendant insisted on 

discussing the merits of the case. The bail decision was 

consequently delayed to the following day.

The next day, the judge again attempted to ask defendant if 

he understood the charges. After hearing some ramblings by 

defendant about inmates at Guantanamo Bay, the judge set bail. 
8 A-5526-14T1

The judge also required defendant to be held, pending a courtordered psychiatric evaluation.

The record on appeal does not include a copy of the initial 

psychiatric evaluation. However, later reports indicate that 

defendant underwent that initial court-ordered screening on 

February 14, 2014.

Based upon observations that he was "confused, agitated, and 

disorganized," defendant was civilly committed temporarily to a 

hospital for psychiatric treatment. During that brief commitment, 

defendant was medicated with Depakote and Haldol, and his condition 

improved. At some point not specified in the record, medical 

personnel deemed defendant suitable for discharge, and he was 

released from the hospital on February 24, 2014. Because his bail 

had been posted, he was released into the community. He lived at 

home until the time of trial.

In September 2014, the trial court conducted a status hearing 

to address the State's plea offer and also to discuss defense 

counsel's motion for a competency hearing. With respect to the 

second-degree eluding offense, which exposed defendant to a fiveto-ten-year custodial sentence, the State offered him a 

noncustodial sentence within the third-degree range, with a 

mandatory six-month loss of driver's license. Defense counsel 
9 A-5526-14T1

advised the court that he had discussed the State's offer with 

defendant "many, many times," and that the client had rejected it.

Defense counsel requested the court to order a second 

competency evaluation to supplement the results of the February 

2014 evaluation. Counsel argued that the initial evaluation was 

not a "full blown competency evaluation," since it did not 

explicitly confirm that defendant understood the judge's role in 

the trial and his own role as an attorney. Without objection from 

the State, the court ordered the second evaluation.

Dr. Paul's Competency Evaluation

The second evaluation was performed by a licensed 

psychologist, Dr. Peter D. Paul, who was with defendant for an 

hour on October 7, 2014. Dr. Paul issued his written report of 

that session on October 31, 2014. As part of the evaluation, Dr. 

Paul reviewed defendant's medical and criminal records.

Defendant disclosed to Dr. Paul that he had a history of 

mental illness. That history stemmed from a childhood accident 

in which he was "hit by a bus while riding a motorcycle, causing 

him to crash head first into a telephone pole." 

Dr. Paul noted in his report that defendant showed he was 

aware that the court had ordered him to be evaluated, and that he 

understood that the evaluation could not be used as evidence 

against him in the criminal case itself but only to determine his 
10 A-5526-14T1

competency. The doctor stated that defendant was "extremely verbal 

and tended to go off on tangents, but was generally cooperative 

with being interviewed[.]" Defendant disclosed to Dr. Paul the 

medication that he was taking. He denied experiencing any 

hallucinations. Dr. Paul specifically noted in this regard that 

defendant "did not display a disturbance in his thinking."

Dr. Paul found defendant "initially irritable," but noted 

that as the interview progressed, he complied with questions. Dr. 

Paul found that defendant's "mood appeared to be relatively 

stable." With respect to defendant's cognitive skills, Dr. Paul 

observed that his thinking was "logical and clear," and that he 

could easily recall recent as well as more distant memories. 

Although defendant was prone to go off on tangents, Dr. Paul 

nonetheless found he was "fully alert."

On the subject of his pending criminal case, defendant told 

Dr. Paul that he had not accepted the State's plea offer because 

"he would be set up to fail [probation]" inasmuch as he would not

be able to get to the Probation Office in New Brunswick by mass 

transit. Defendant did admit to Dr. Paul that he "got a little 

upset in court" when his attorney had encouraged him to accept the 

plea offer.

Additionally, Dr. Paul found that defendant recognized the 

elements of the criminal justice system, and how those elements
11 A-5526-14T1

related to him and his case. The doctor noted that defendant knew

that he was charged with a crime arising from his failure "to 

yield to a police vehicle." Defendant also displayed to Dr. Paul 

an understanding of the respective roles of the prosecutor, the 

judge, his attorney, and the jury. Defendant recognized that he 

had the right to remain silent at trial or testify on his own 

behalf.

In sum, Dr. Paul concluded that defendant was competent to 

stand trial. The doctor recommended that defendant continue with 

his medication to maintain that competency. Dr. Paul noted that 

defendant was living independently in the community while on 

medication, and opined that "it is likely that [defendant] will 

remain competent while he takes his current medication."

As Dr. Paul concluded, "[a]lthough he can be irritable and 

oppositional, this defendant is living in the community 

independently at this time. His current mental condition is such 

that he does not present a danger to himself, other persons, or 

property."

The February 25, 2015 Competency Hearing

On the eve of trial, the trial court conducted a competency 

hearing on February 25, 2015, nearly five months after the October 

2014 competency evaluation performed by Dr. Paul. At the outset

of that hearing, the judge noted that he had reviewed Dr. Paul's 
12 A-5526-14T1

report. The judge indicated that he also wanted to hear from 

defense counsel and defendant himself, in order to "assure the 

[c]ourt that [defendant] is still competent to stand trial."

Defendant's trial counsel addressed the court first. He 

stated that he had numerous phone calls and in-person encounters 

with defendant since September 2014. Counsel stated that his

"impression all along [is] that [defendant] has been competent to 

deal with this matter in the sense that he's always been lucid." 

The attorney confirmed that defendant understood the charges, as 

well as the respective roles of the judge, the prosecutor, and the 

defense attorney, and also his status in the case as the defendant.

Although counsel acknowledged that "because of [defendant's]

emotional issues that [he] often times gets off point," the 

attorney advised the court that "I haven't had problems" bringing

his client's attention back to the trial. The attorney maintained 

that he had been able to discuss the nuances of the case with 

defendant, as well as the reasoning that had led to his rejection 

of the plea offer.

The judge next conducted a colloquy on the record with 

defendant. During this exchange, defendant frequently would veer 

off-topic or discuss elements of this case, despite his attorney's 

instructions to remain quiet. However, when he was focused back 

on the pertinent topics by the judge, defendant generally provided
13 A-5526-14T1

coherent responses that reflected a cogent understanding of the 

legal process. 

Defendant confirmed to the judge his awareness of the roles 

of the judge, the prosecutor, and his defense counsel. He 

recognized that the prosecutor was "going to argue to the jury" 

that he ran two red lights while a police officer was behind him. 

Defendant also understood that his attorney was "going to be trying 

to defend me," although he realistically appreciated that 

counsel's task would be difficult because there was "videotape 

showing me running two lights, although I was proceeding slowly." 

Defendant further acknowledged to the judge that he knew he had a 

right not to testify, although he would "rather explain to the 

jury what I did [and] why I did it."

Based on these presentations, the judge ruled that defendant 

remained competent to stand trial. The case then proceeded with 

the State's evidence.

The Course of the Trial

At several points in the trial, the judge engaged in further 

colloquy with defendant concerning his decision about testifying. 

The judge advised defendant to listen to his attorney and evaluate 

his decision on the subject carefully. The judge read defendant 

the instruction that would be read to the jury if he opted to 

testify. The judge further explained to defendant that his prior 
14 A-5526-14T1

convictions could be considered by the jury if he chose to testify. 

Defendant asked the judge if he could explain those prior 

convictions if they were admitted. During the course of the 

colloquy outside of the jury's presence, defendant made various 

statements to the court that were self-inculpatory.

The judge considered the admissibility of defendant's prior 

convictions under N.J.R.E. 609 and the Sands/Brunson test.

1 Before 

rendering his decision on admissibility, the court adjourned for 

the weekend. 

When the case resumed on March 3, 2015, the judge again 

addressed defendant's intentions about testifying. Defense 

counsel informed the court that he and defendant had met on the 

preceding Friday and Saturday to discuss the decision.

THE COURT: [Defendant], have you made a 

decision about whether you will testify at 

trial?

DEFENDANT: I’ll let my attorney ask me the 

questions and I will testify but the verdict 

is going to be based on the evidence which is 

not the accurate --

DEFENSE COUNSEL: [Defendant], just answer the 

question.

 

1 The Sands/Brunson test evaluates the "remoteness" of a 

defendant's prior convictions and determines their admissibility 

at trial. See State v. Brunson, 132 N.J. 377 (1993); State v. 

Sands, 76 N.J. 127 (1978). But see the revised version of N.J.R.E.

609. (effective July 1, 2014). The admissibility of defendant's 

prior convictions to impeach his trial testimony is not an issue 

in this appeal.
15 A-5526-14T1

DEFENDANT: Yes, Your Honor, I’ll testify.

THE COURT: All right. Did you make this 

decision yourself?

DEFENDANT: Well, my attorney’s advising me to 

make this decision, Your Honor.

THE COURT: Have you been put under any 

pressure, made any promises or threatened into 

testifying?

DEFENDANT: No. I was [not] threatened or I 

haven’t threatened anybody else. I just see 

the way the case has been.

THE COURT: Well, the case isn’t over yet. Has 

your attorney answered all the questions you 

may have had about this?

DEFENDANT: I suppose.

Defendant ultimately testified, providing his account of the 

events as we have previously described. At no point during the 

trial did defense counsel raise defendant's competency as an issue

to be considered again by the court.

The Verdict and Sentencing

Following deliberations, the jury found defendant guilty of 

second-degree eluding, the sole count in the indictment. Defense 

counsel moved for a new trial, arguing that the court had 

improperly admitted evidence of defendant's prior convictions. 

That post-trial motion made no mention of defendant's competency. 

The court denied the motion, leaving the jury verdict intact.
16 A-5526-14T1

At sentencing, the judge reviewed a presentence report that 

provided details of defendant's mental health history. In addition 

to that past history, the report indicated that defendant had 

recently experienced suicidal thoughts since the time of the jury's 

guilty verdict. 

The judge noted in his sentencing analysis that he had 

considered defendant's childhood head injury. The judge also 

considered defendant's later diagnoses of schizophrenia, bipolar 

paranoia, and delusion.

The judge identified three applicable aggravating factors

that bore upon the sentence: (3) "the risk that defendant will 

commit another offense," N.J.S.A. 2C:44-1(a)(3), (6) "the extent 

of the defendant's prior criminal record and the seriousness of 

the offenses of which he has been convicted," N.J.S.A. 2C:44-

1(a)(6), and (9) "the need for deterring the defendant and others 

from violating the law," N.J.S.A. 2C:44-1(a)(9). Additionally, 

the judge found three pertinent mitigating factors: (2) "the 

defendant did not contemplate that his conduct would cause or 

threaten serious harm," N.J.S.A. 2C:44-1(b)(2), (4) "there were 

substantial grounds tending to excuse or justify the defendant's 

conduct, though failing to establish a defense," 2C:44-1(b)(4),

and (7) "the defendant has no history of prior delinquency or 

criminal activity or has led a law-abiding life for a substantial 
17 A-5526-14T1

period of time before the commission of the present offense,"

N.J.S.A. 2C:44-1(b)(7).

On balance, the judge concluded that the "mitigating factors 

substantially outweigh the aggravating factors and there are 

compelling reasons to downgrade the defendant's sentence." In 

this regard, the judge noted that "the punitive effect of 

imprisonment for this particular defendant is disproportionate to 

the offense committed because of [his] mental health[.]" 

Accordingly, the judge downgraded the eluding conviction to a 

third-degree offense. As we have already noted, the judge

sentenced defendant to a three-year flat prison term, with no 

parole disqualifier. The judge also ordered that defendant receive 

further mental health treatment.

This appeal ensued. We now discuss, in turn, defendant's 

points regarding (1) competency and (2) the sentence.

II.

Defendant's primary point on appeal is that the trial court, 

sua sponte, was obligated to order an updated competency evaluation 

immediately before or during the trial because of his display of 

aberrational behavior in the courtroom. He contends that the 

assertions of his trial attorney at the pretrial competency hearing 

about his capabilities should be afforded minimal weight because 

an attorney generally lacks the diagnostic skill of a mental health 
18 A-5526-14T1

professional. He further contends that Dr. Paul's report had 

essentially become stale by the time of trial. He maintains that 

the psychologist's expert opinion vouching for defendant's 

competency was predicated on an unsupported assumption that 

defendant would continue to take his medications. He contends 

that the aberrational behavior he displayed in the courtroom should 

have raised a serious concern that he was no longer on those 

medications when the trial proceeded.

Several fundamental principles guide our analysis of this 

issue. The Legislature has codified the common law standards for 

mental competence in N.J.S.A. 2C:4-4. The statute prohibits a 

person "who lacks capacity to understand the proceedings against 

him or to assist in his own defense" from being "tried, convicted 

or sentenced for the commission of an offense so long as such 

incapacity endures." N.J.S.A. 2C:4-4(a). The statute further 

requires the defendant to be the "mentally competent to stand 

trial on criminal charges." N.J.S.A. 2C:4-4(b)(1). To determine 

whether a defendant has the requisite mental competency, it must 

be shown that he comprehends:

(a) That he is in a court of justice charged 

with a criminal offense;

(b) That there is a judge on the bench;

(c) That there is a prosecutor present who 

will try to convict him of a criminal charge;
19 A-5526-14T1

(d) That he has a lawyer who will undertake 

to defend him against that charge;

(e) That he will be expected to tell to the 

best of his mental ability the facts 

surrounding him at the time and place where 

the alleged violation was committed if he 

chooses to testify and understands the right 

not to testify;

(f) That there is or may be a jury present 

to pass upon evidence adduced as to guilt or 

innocence of such charge or, that if he should 

choose to enter into plea negotiations or to 

plead guilty, that he comprehend the 

consequences of a guilty plea and that he be 

able to knowingly, intelligently, and 

voluntarily waive those rights which are 

waived upon such entry of a guilty plea; and

(g) That he has the ability to participate 

in an adequate presentation of his defense.

[N.J.S.A. 2C:4-4(b)(2)(a)-(g)].

Last year, our Supreme Court canvassed the procedural aspects 

that relate to such competency determinations in State v. Gorthy, 

226 N.J. 516, 530 (2016). The Court noted in Gorthy that, when 

deciding if a criminal defendant is competent, a trial judge

retains the authority to decide whether or not to hold a competency 

hearing, as there are "no fixed or immutable signs which invariably 

indicate the need for further inquiry to determine fitness to 

proceed." Ibid. (quoting Drope v. Missouri, 420 U.S. 162, 180, 

95 S. Ct. 896, 908, 43 L. Ed. 2d 103, 118 (1975)). 
20 A-5526-14T1

When a competency hearing is conducted, the State has the 

burden to prove by a preponderance of evidence that the defendant's 

mental condition "does not render him or her incompetent to stand 

trial." Ibid. The trial court generally should rely on 

evaluations by one or more mental health professionals, who opine 

on the defendant's condition and ability to "understand and 

participate in the legal process." Id. at 530-31. The State does 

not have to prove that the defendant "is capable of formulating a 

legal strategy" or has the ability to "communicate with counsel 

using complex language." Id. at 531. The focus instead turns on 

the extent the defendant's mental condition "precludes meaningful 

interaction with his or her attorney." Id. at 532.

A court must make a competency determination based upon 

sufficient supporting evidence. Defendant's arguments 

substantially rely in this regard upon our opinion in State v. 

Purnell, 394 N.J. Super. 28, 50 (App. Div. 2007). In Purnell, a 

defendant challenged his conviction based on incompetency, 

asserting that the trial judge had improperly rejected his trial 

counsel's repeated assertions throughout the proceedings that his 

client was not competent to stand trial. Id. at 49. The defendant 

noted on appeal that he had not understood the significant jail 

time he faced, despite his family members strongly encouraging him 

to accept a plea offer. Id. at 51. He also referred to various 
21 A-5526-14T1

rambling incoherent responses he had provided to questions from 

the trial court. Id. at 52.

One year before the trial in Purnell, the court had ordered 

a competency evaluation of defendant by a clinical psychiatrist. 

However, the defendant had refused to cooperate during that 

evaluation. Id. at 38-39. Hence, the psychiatrist could only 

offer an "educated guess" as to the defendant's competency, which 

the court found was "inconsistent" about whether he could stand 

trial. Id. at 49. 

Based on the expert report, defense counsel's representations 

to the court, and a brief voir dire of defendant conducted in 

court, the trial judge concluded defendant was competent to 

proceed. Ibid.

On appeal, we overturned Purnell's conviction, finding that 

the State had failed to meet its evidential burden of competency. 

Id. at 50. We acknowledged that the defendant's refusal to 

cooperate hindered a meaningful review of his competence, but 

without sufficient evidence the court could not find him competent. 

Id. at 52. We indicated that, in the circumstances presented, the 

trial court or prosecutor should have procured additional experts 

to evaluate the defendant. Ibid. We further noted the trial 

judge could have attempted on the record to question the 

defendant's understanding of the factors in N.J.S.A. 2C:4-4, or 
22 A-5526-14T1

ordered further review of his past medical and school records. 

Id. at 52-53. Because the State in Purnell did not provide 

evidence to rebut the bona fide question of the defendant's 

competency that had been presented, we reversed his conviction. 

Id. at 53.

Defendant also relies upon State v. Lambert, 275 N.J. Super.

125, 131 (App. Div. 1994). In Lambert, at the outset of trial of

the defendant's drug distribution charge, defense counsel 

requested an adjournment to enable a psychiatric evaluation of his 

client. Id. at 130. Months earlier, the defendant had told his 

counsel that he had no history of mental illness. Ibid. However, 

eight days before trial, defense counsel learned that the defendant 

in fact took psychiatric medication, had been placed on a suicide 

watch at prison, and had been diagnosed as a paranoid 

schizophrenic. Id. at 131. 

Despite the fact that the defendant's trial counsel in Lambert

informed the court of these developments, and expressed concern 

about his client's competency to stand trial, the judge denied the 

request to adjourn the case for a psychiatric evaluation. Ibid. 

A later psychiatric evaluation at the defendant's pre-sentencing 

hearing concluded that he was competent. Id. at 132.

On appeal in Lambert, we reversed, finding that because 

defense counsel had raised a bona fide doubt as to the defendant's 
23 A-5526-14T1

competency, the trial court was required to conduct further 

inquiry. Id. at 131-32. We noted that the trial attorney was "in 

a far better position than the trial judge to assay the salient 

facts concerning the defendant's ability to stand trial." Id. at 

131 (quoting State v. Lucas, 30 N.J. 37, 74 (1959)). We also 

ruled that the later pre-sentencing psychiatric determination of 

competency did not resolve the issue, because the trial court had 

too readily dismissed the trial counsel's expressed bona fide 

concerns about defendant's competency during the trial phase. 

Lambert, supra, 275 N.J. Super. at 133.

The circumstances here are not comparable to those in Purnell

and Lambert. The trial judge responsibly ordered two successive 

professional evaluations before the trial, the most recent one by 

Dr. Paul. In addition, the judge engaged in a voir dire of 

defendant right before the trial began and witnesses were sworn. 

Moreover, defendant's trial counsel clearly attested to his own 

positive impressions of his client's competency to stand trial and 

his ability to assist counsel in the case. This is markedly 

distinguishable from the situation in Purnell, in which defense 

counsel repeatedly pressed the competency concerns with the court, 

which the court ignored. 

The present case is also markedly different from Lambert, in 

that this defendant's mental health history was not hidden until 
24 A-5526-14T1

the eve of trial but instead well known and the subject of two 

pretrial competency evaluations. The judge acted with reasonable 

diligence and vigilance by ordering two such evaluations, 

considering their results, and questioning both defendant and his 

counsel on the record to confirm defendant's ability to proceed. 

The judge also made multiple inquiries into defendant's decision 

to testify.

Defendant contends that his display of erratic behavior 

during the trial phase should have signaled to the court that he 

was no longer on medication, and therefore the court should have 

ordered a third competency evaluation. He also points to certain 

post-trial information to support this argument. In particular, 

he points to a handwritten letter he wrote to the judge after his 

conviction and before sentencing, which states that he had been 

"off [his] medications for a year and a half and was in a very 

confused, paranoid, and manic state." Defendant also highlights 

psychiatric reports attached to his sentencing brief indicating 

he has a "[l]ong history of medication noncompliance at times . . . 

due to financial problems." 

Although we appreciate that an individual's competency can 

be a dynamic and complicated subject, we are unpersuaded that the 

trial judge in this case – based on what had been presented to him 

and what steps he had already taken to assure defendant's 
25 A-5526-14T1

competency – had any mandatory obligation to take additional 

measures. To be sure, the trial transcripts show that defendant 

often rambled, and his explanation of why he did not stop his car 

when the police officer signaled for him to do so is not 

compelling. Even so, defendant ultimately was focused away from 

tangents. His decision to testify, by all outward manifestations, 

had been repeatedly discussed with his counsel and the court and 

he nevertheless exercised his right to present his account to the 

jury. In Gorthy, supra, 226 N.J. at 536, the Court recognized the 

importance of providing a defendant with mental health issues with 

the autonomy to make that choice.

Notably, defendant's trial counsel here endeavored during 

summations to use defendant's seemingly implausible narrative to 

his advantage, urging the jurors to take into account that his 

client "does not have the precise thinking of an accountant, a 

bookkeeper, [or] a traffic controller." "His mind works 

differently," counsel argued, defendant "says contradictory 

things." Counsel advocated that, under the law, a person is not 

guilty of eluding unless the State proves that the defendant 

"know[s] that the officer wants to pull over, and that was not the 

case in this particular instance."

Having thus unsuccessfully attempted to gain an acquittal by 

such arguments designed to garner the jurors' understanding of his 
26 A-5526-14T1

idiosyncratic manner, defendant is not entitled to a second chance 

to gain relief through a new argument on appeal about his 

competency that was never presented to the trial judge by his 

counsel. We ascribe no nefarious motives to counsel in this 

regard, as the record, by all indications, reflects that his 

attorney genuinely perceived defendant to be competent to proceed, 

as did Dr. Paul and the other expert who had previously examined 

him.

In a supplemental brief provided to us on our invitation 

after the appellate oral argument, the assistant deputy public 

defender has supplied us with citations to several cases in which 

an appellate court has ordered a remand to the trial court for the 

purposes of a retrospective competency evaluation. Such a 

retrospective evaluation could attempt to reconstruct whether a 

defendant had been competent at the earlier time when he was tried. 

We discern no reason to compel such a retrospective assessment in 

this case.

The only reported New Jersey decision cited by the assistant 

deputy public defender in which such a retrospective evaluation 

was ordered is State v. Latif, 134 N.J. Super. 441, 447 (App. Div. 

1975). That case is not on point here. In Latif, the trial court 

notably had already granted a new trial because the defendant had 

been incompetent at the time of his initial conviction. Id. at 
27 A-5526-14T1

444. Before the new trial began, the State's expert opined that 

the defendant was likely not competent to stand trial whereas the 

defense expert reached a contradictory finding and opined that he 

lacked competency. Id. at 444-45. Although defense counsel and 

the State both agreed to an updated competency hearing, the court 

declined to conduct one because the defendant had expressed his 

personal desire to proceed to trial. Id. at 445-46. He then was 

found guilty by the second jury. Id. at 443.

Given those discrete circumstances, we reversed the 

conviction in Latif, because the competing expert opinions 

presented to the trial court required the trial court to conduct 

further inquiry. Id. at 447. We consequently remanded the case 

to the trial court to address whether the evidence was sufficient 

to make a competency evaluation. Ibid.

The situation here is not akin to that in Latif. The only 

expert evaluations of defendant's competency consistently 

supported his ability to stand trial, as contrasted with the 

opposing expert reports that were presented to the court in Latif. 

Although defendant has been treated in the past for mental illness, 

there is no indication in this record, unlike in Latif, that he 

was previously declared incompetent to stand trial. Moreover, 

defendant's trial counsel here vouched for his client's competency 
28 A-5526-14T1

and did not request an updated hearing. Nor did the prosecutor, 

as in Latif.

The assistant deputy public defender has intimated that her 

office has come into possession of additional information that may 

show that defendant was not, in fact, on his medication as of the 

time of trial. There was no timely motion to supplement the 

appellate record with such materials during the briefing of this 

case. Moreover, even if such medical records do exist and document 

that defendant was non-compliant with his medications as of the 

time of trial, no such information was supplied to the court during 

the trial. We can hardly fault the judge for not considering 

information that was never provided to him. That said, we do not 

foreclose defendant from seeking relief in the trial court with 

alleged newly-discovered evidence in an appropriate motion under 

Rule 3:20-1, or in a future petition for post-conviction relief 

under Rule 3:22-1.

Lastly, we reject defendant's argument that his incompetence 

was demonstrated by self-inculpatory statements he made to the 

court during trial. He did not make these statements in the jury's 

presence. We are unpersuaded that the statements required the 

court to delve further into his competency without a specific 

request from his counsel in these circumstances. 
29 A-5526-14T1

In sum, we conclude that the trial court had no sua sponte

obligation to order an updated competency evaluation in the 

circumstances presented. The judge acted reasonably and in 

substantial reliance upon the unrefuted expert reports, the 

observations and attestations of defendant's trial counsel, and 

defendant's own insistence on proceeding, in a manner that his 

attorney attempted to use to strategic advantage with the jurors 

in summation. The conviction is accordingly affirmed.

III.

Defendant separately argues that his sentence was excessive. 

This argument requires little comment. The trial judge reasonably 

took into account defendant's mental health history in downgrading 

his second-degree conviction to a third-degree offense for 

sentencing purposes. We discern no basis to disturb the judge's 

discretionary weighing of the aggravating and mitigating factors. 

State v. Roth, 95 N.J. 334 (1984). As the Court instructed in 

State v. Bieniek, 200 N.J. 601, 612 (2010), when the trial court 

follows "the sentencing principles set forth in the Code and 

defined in our case law, its discretion should be immune from 

second-guessing."

Defendant relies on State v. Jarbath, 114 N.J. 394 (1989) to 

argue that a sentencing judge should decline to impose a custodial 

sentence when there is a "serious injustice of imprisonment" in 
30 A-5526-14T1

circumstances that clearly outweigh the need for deterrence. Id.

at 409. There, the Supreme Court found a custodial sentence 

improper where the trial court did not downgrade the second-degree 

manslaughter sentence of a developmentally disabled defendant, 

despite finding that the aggravating factors were only "marginally 

applicable." Id. at 401-02. Additionally, the Court determined 

that because the defendant's mental condition rendered her unable 

to endure prison life and caused her to experience ongoing daily 

abuse by other inmates prior to sentencing, the "serious injustice 

of imprisonment" outweighed the importance of general deterrence 

of the crime. Id. at 409.

The present circumstances are different. First, the trial 

judge here did downgrade defendant's sentence, based on his 

analysis of the aggravating and mitigating factors, unlike the 

court in Jarbath, which declined to do so. Further, although 

defendant has allegedly experienced sexual abuse while being 

imprisoned in the past, the record does not contain any evidence 

of recent ongoing abuse, as was the case in Jarbath. The judge 

here reasonably analyzed the aggravating and mitigating factors 

as applied to this defendant, and found no demonstrated "serious 

injustice" was present. 

In sum, the judge at sentencing fairly took into account 

defendant's mitigating circumstances, particularly in downgrading 
31 A-5526-14T1

the offense despite the State's arguments for a longer seconddegree term. We decline to "second-guess" the judge's sentencing 

decision, and the custodial term he imposed. Bieniek, supra, 200 

N.J. at 612.

Affirmed.