is requested, that the defendant has regained his fitness to
proceed, the proceedings shall be resumed. N.J.S.A.
2C:4-6d.
A defendant who raises competency to stand trial for
the first time on appeal must establish that “it clearly and
convincingly appears that the defendant was incapable of
standing trial.” State v. Lucas, 30 N.J. 37, 73-74 (1959);
State v. Norton, 167 N.J. Super. 229, 232 (App. Div.
1979).
INDICTMENTINDICTMENTINDICTMENTINDICTMENTINDICTMENT
(See also, GRAND JURY and JOINDER AND
SEVERANCE, this Digest)
I. SUFFICIENCY
The standards for determining the sufficiency of an
indictment are well-settled. The fundamental inquiry is
whether the indictment misleads or misinforms the
accused as to the crime charged. The key is intelligibility.
The indictment must charge defendant with the
commission of a crime in reasonably understandable
language setting forth “all of the critical facts and each of
the essential elements which constitute the offense
alleged” so that defendant may prepare an adequate
defense, to prevent an accusation which violates double
jeopardy principles, and to preclude substitution by a
trial jury of an offense for which the grand jury has not
indicted. R. 3:7-3(a); State v. Wein, 80 N.J. 491, 497
(1979); State v. Spano, 128 N.J. Super. 90, 92 (App.
Div.), aff’d, 64 N.J. 566 (1974); see also State v. Branch,
155 N.J. 317, 324 (1997); State v. New Jersey Trade Waste
Ass’n, 96 N.J. 8, 18-19 (1984); State v. Talley, 94 N.J.
385, 391-92 (1983); State v. Mello, 297 N.J. Super. 452,
462 (App. Div. 1997); State v. Lopez, 276 N.J. Super.
296, 301-02 (App. Div.), certif. denied, 139 N.J. 289
(1994). However, defendant may waive his or her right
to indictment and may be tried on accusation. R. 3:7-2.While a grand jury cannot indict upon mere whim or
caprice, it is only required to find that a crime was
committed and that the accused person should stand trial
on the charges. State v. Muniz, 150 N.J. Super. 436, 446
(App. Div.), certif. denied, 77 N.J. 473 (1978).
Specifically, the grand jury should be charged that the
burden of proof to return an indictment is evidence,
which if unexplained or uncontradicted, would justify
the conviction of the accused. Trap Rock Industries, Inc.
v. Kohl, 59 N.J. 471, 487, cert. denied, 405 U.S. 1065
(1972). An indictment should be dismissed only on the
clearest and plainest grounds when the indictment’s
insufficiency is palpably shown. State v. Hogan, 144 N.J.
216, 228 (1996); State v. Ciba-Geigy Corp., 222 N.J.
Super. 343, 351-52 (App. Div. 1988); State v. Muniz,
150 N.J. Super. at 446. New Jersey’s discovery policy,
including defendant’s right to move for a bill of
particulars, ordinarily obviates the potential for prejudice
of any alleged insufficiencies in the indictment. State v.
Mello, 297 N.J. Super. at 463.In charging the grand jury on the elements of the
crime for which it is considering indictment, it is