cdTOCtest

the defendant should be dismissed with prejudice or held
in abeyance. N.J.S.A. 2C:4-6c; State v. Moya, 329 N.J.
Super. at 510. Notice of the hearing must be provided to
the prosecutor with an opportunity to be heard. N.J.S.A.
2C:4-6c. If the charges are not dismissed, the case is to
be reviewed by the court at six-month intervals until
there is a court order that the defendant stand trial or that
the charges be dismissed. Id.

There is a presumption that charges against an
incompetent defendant shall be held in abeyance, which
can only be overcome if the court determines that
continuance of the criminal prosecution would
constitute a “constitutionally significant injury” to the
defendant because of the undue delay in being brought
to trial. Id.; State v. Moya, 329 N.J. Super. at 511. In
Moya, the court explained that a “prime issue” is whether
the defendant is a danger to himself or others as to require
institutionalization, or whether placement in an out-
patient setting or release is more appropriate. Id. (citing
N.J.S.A. 2C:4-6b).

The court must weigh the following factors in
deciding whether the charges should be dismissed or held
in
abeyance:

1. The defendant’s prospects for regaining
   competency;


2. The period of time during which the defendant has
   remained incompetent;


3. The nature and extent of the defendant’s
   institutionalization;


4. The nature and gravity of the crimes that are
   charged;


5. The effects of delay on the prosecution;


6. The effects of delay on the defendant, which
   includes any likelihood of prejudice to the defendant in
   the trial arising out of the delay; and


7. The public interest in prosecuting the charges.
   N.J.S.A. 2C:4-6c; State v. Moya, 329 N.J. Super. at 510,
   514-15; see also State v. Gaffey, 92 N.J. 374, 386 (1983).

It was noted in Moya, that in making the
determination of dismissal with prejudice or imposing
some form of monitoring for a reasonable period of time,
the court must not only consider the nature and gravity

of the crimes that are charged, but must also balance the

societal interest in protection against the rights of the

incompetent defendant. Id. at 512. To accomplish this,

the court must conduct a factual exploration to

determine the likelihood that the defendant committed

the offenses charged, not for use at trial as to guilt, but

solely to determine competency and danger. As

explained in Moya, the determination of dangerousness

involves a prediction of the defendant’s future conduct,

rather than a mere characterization of his demonstrated

past conduct. Id. at 513 (citing State v. Krol, 68 N.J. 236,

260-61 (1975)). However, past conduct is probative of

future conduct and should be given substantial weight in

the dangerousness determination. State v. Moya, 329

N.J. Super. at 513.

Issues pertaining to unconstitutional delay, i.e.,

claims related to the speedy trial right, should be made

on a case-by-case basis in terms of actual prejudice to the

defendant’s rights that can be demonstrated or

reasonably inferred from the delay. Id. at 514 (citing

State v. Gaffey, 92 N.J. at 388-89). In weighing the effects

of delay on the defendant and the prosecution, the court

should consider the availability of witnesses, preservation

of evidence, and the extent to which the delay may have

resulted from causes attributable to the defense, which

includes the several professional examinations made after

the issue of competency was raised by a defendant. State

v. Moya, 329 N.J. Super. at 515; see also United States v.

Tobin, 155 F.3d 636, 642 (3d Cir. 1998), cert. denied,

525 U.S. 1171, 119 S.Ct. 1094 (1999) (a defendant’s

unwillingness to comply with a valid competency

examination order should not be counted against the

government on federal statutory speedy trial grounds).

The responsibility of the trial court to prevent the

trial of a defendant who lacks the requisite ability to

understand and participate in the proceedings is

ongoing. State v. Latif, 134 N.J. Super. 441, 447 (App.

Div. 1975). Thus, even though a defendant has

previously been found competent, a lengthy delay in the

trial proceedings or evidence that the defendant’s

condition has changed may necessitate a further inquiry

into the defendant’s present competence. See State v.

Khan, 175 N.J. Super. 72, 77-78 (App. Div. 1980); see

also State v. Jasuilewicz, 205 N.J. Super. 558, 576 (App.

Div. 1985), certif. denied, 103 N.J. 467 (1986).

E. Regaining of Fitness to Proceed

When the court, on its motion, or upon the

application of the Department of Human Services, or

either party, determines after a hearing, if such a hearing