The Appellate Division continued in relevant part:
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. 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 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 whether our State’s Constitution would afford defendant greater liberty or privacy.
The prosecution will likely appeal this decision to the New Jersey Supreme court. The domestic violence issue is one that favors the prosecution if the Court is swayed by the current political climate surrounding the issue.