State v. Antoine McCray State v. Sahaile Gabourel (082744) (Middlesex & Hudson County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Antoine McCray; State v. Sahaile Gabourel (A-75/76-18) (082744)
Argued March 2, 2020 -- Decided July 20, 2020
RABNER, C.J., writing for the Court.
In this appeal, the Court considers whether the State can prosecute contempt
charges for a violation of a condition of pretrial release under the Criminal Justice
Reform Act (CJRA or Act).
In April 2017, defendant Antoine McCray was arrested and charged with second-
degree robbery. A week later, the trial court released McCray subject to certain non-
monetary conditions, including that he “not commit any offense during the period of
release.” In August 2017, McCray was charged with various theft offenses for allegedly
stealing a wallet and then making fraudulent purchases. A grand jury indicted McCray
for fourth-degree contempt for violating the trial court’s order of pretrial release. The
sentencing judge dismissed the contempt indictment, noting that the CJRA does not
provide for contempt prosecutions.
Defendant Sahaile Gabourel was arrested and charged with possession and
distribution of heroin on July 10, 2018. He was released subject to a number of
conditions, including a 6 p.m. curfew. Later that month, police officers arrested Gabourel
when they saw him on a street corner at 8:09 p.m. They found three Percocet pills in his
pocket. Gabourel was then charged with fourth-degree contempt -- for disobeying the
trial court’s release order and violating the curfew condition -- and with possession of
Percocet. After a hearing, the judge revoked the order of pretrial release and detained
Gabourel. The judge concluded, however, that the State may not prosecute a non-
criminal violation of a term or condition of a pretrial release order by way of contempt.
The Appellate Division consolidated the cases and reversed in both. 458 N.J.
Super. 473, 478 (App. Div. 2019). The Court granted McCray’s petition for certification,
238 N.J. 69 (2019), and Gabourel’s motion for leave to appeal, 238 N.J. 51 (2019).
HELD: The history of the CJRA reveals the Legislature did not intend to authorize
criminal contempt charges for violations of release conditions. Beyond that, allowing
such charges for all violations of conditions of release, no matter how minor, is at odds
with the purpose and structure of the CJRA. No-contact orders are treated differently,
1
however, because the CJRA did not modify settled law relating to them. In State v.
Gandhi, 201 N.J. 161 (2010), the Court held that violations of no-contact orders -- even if
issued as part of a pretrial release order -- can serve as a basis for contempt charges. That
precedent remains firmly in place. Because neither appeal here involved a violation of a
no-contact order, the Court reverses the judgment of the Appellate Division and
dismisses the contempt charges against both defendants.
1. Before the CJRA’s enactment, New Jersey’s system of pretrial release relied heavily
on the use of monetary bail. The new law instead relies primarily on pretrial release,
accompanied by non-monetary conditions, “to reasonably assure” that defendants will
appear in court when required, will not endanger “the safety of any other person or the
community,” and “will not obstruct or attempt to obstruct the criminal justice process.”
N.J.S.A. 2A:162-15. N.J.S.A. 2A:162-17 outlines various non-monetary conditions a
court may order. And N.J.S.A. 2A:162-23 provides that, when a court releases a
defendant on conditions, it must notify the defendant of those conditions and of the
penalties for violating those conditions. (pp. 11-13)
2. Under N.J.S.A. 2A:162-24, if a court finds the defendant “has violated a restraining
order or condition of release,” or finds “probable cause to believe that the eligible
defendant has committed a new crime while on release,” the judge may not revoke the
release and order detention without making findings like those required for ordering
detention in the first instance. Implicit in N.J.S.A. 2A:162-24 is the authority to impose
additional conditions, short of detention, if a judge finds a defendant violated a condition
of pretrial release but does not meet the standard for detention. Consistent with the
statute, Rule 3:26-2(d)(1) authorizes the court to revoke the defendant’s release and enter
an order of detention for a violation of a condition of pretrial release only if, upon a
motion by the prosecution, the court finds that no combination of conditions would
reasonably ensure against the risk of flight, danger, or obstruction. Like N.J.S.A.
2A:162-23 and -24, the Rule does not mention contempt sanctions. (pp. 13-14)
3. In many ways, the Legislature patterned the CJRA after the federal Bail Reform Act
of 1984 and the District of Columbia’s statutory framework for pretrial detention, both of
which expressly provide for contempt prosecutions to address violations of conditions of
pretrial release. The original text of the CJRA specifically permitted criminal contempt
charges, like the federal and D.C. statutes. In later reprints of the draft legislation,
however, that language was removed. The final version of the legislation, signed into
law on August 11, 2014, does not include any reference to contempt. L. 2014, c. 31
(codified at N.J.S.A. 2A:162-15 to -26). (pp. 14-18)
4. A number of sound reasons support the conclusion that the Legislature considered and
rejected the possibility of contempt charges for violations of release conditions under the
CJRA. First, the Legislature amended the original bill to remove contempt of court
proceedings as an option -- an indication of its intent. Second, the Legislature chose to
2
part company with the federal Bail Reform Act and the D.C. Code when it struck
language about contempt that appears in both of those laws. And the Joint Committee on
Criminal Justice recommended a progressive approach to enforce compliance with
conditions of pretrial release, with increasingly severe sanctions culminating in “the
revocation of release and remand back into custody,” but did not recommend criminal
contempt charges for violations of release conditions. Section 24 of the CJRA follows
the approach recommended by the Committee. (pp. 18-22)
5. That calibrated approach is at odds with the State’s interpretation -- that the Act
permits prosecutors to charge defendants with criminal contempt, a fourth-degree crime,
for a violation of any release condition, even missing a single court appearance. To be
sure, prosecutors would exercise discretion and could decline to bring charges for minor
violations. But that broad-based proposition undermines the CJRA’s goals. Similarly,
the contempt statute’s provision that “[a] person” who “purposely or knowingly disobeys
a judicial order or protective order” can be found guilty of a crime, N.J.S.A. 2C:29-9(a),
cannot be viewed in isolation. The Legislature considered and rejected contempt
sanctions during the drafting stage of the CJRA. And N.J.S.A. 2C:29-9 states that a
violation of an order entered under a series of listed statutes or circumstances may be
subject to a contempt prosecution. Although the contempt statute has been amended four
times since the enactment of the CJRA, the Legislature did not add the CJRA to that list.
The Court notes that decisions holding contempt charges cannot be brought for non-
criminal violations in other contexts do not undermine its conclusion here. (pp. 22-25)
6. No-contact orders under the CJRA are treated differently. Violations of such orders
can be prosecuted under the contempt statute. The CJRA empowers judges to direct
defendants on pretrial release to avoid all contact with an alleged victim of the crime and
with all witnesses. Trial courts, of course, had that same authority before the CJRA went
into effect. And prior case law established that no-contact orders entered as part of a bail
proceeding could be enforced through criminal contempt charges. Gandhi, which the
Court reviews in detail, plainly set forth that principle. 201 N.J. at 190-91. And nothing
in the CJRA or its legislative history suggests the Legislature intended to overrule the
prevailing law in Gandhi. As a result, defendants who violate no-contact orders that are
included as conditions of release can still be prosecuted for contempt. That principle
extends beyond domestic violence cases, as the Court explains. Neither defendant in this
appeal was charged with violating a no-contact order, and the trial judges therefore
properly dismissed their criminal contempt charges. (pp. 25-28)
The judgment of the Appellate Division is REVERSED, and the contempt
charges against defendants are DISMISSED.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-75/76 September Term 2018
082744
State of New Jersey,
Plaintiff-Respondent,
v.
Antoine McCray,
Defendant-Appellant.
_______________________________________________________________
State of New Jersey,
Plaintiff-Respondent,
v.
Sahaile Gabourel,
Defendant-Appellant.
On certification to and appeal from
the Superior Court, Appellate Division,
whose opinion is reported at
458 N.J. Super. 473 (App. Div. 2019).
Argued Decided
March 2, 2020 July 20, 2020
Laura B. Lasota, Assistant Deputy Public Defender,
argued the cause for appellants (Joseph E. Krakora,
Public Defender, attorney; Laura B. Lasota, of counsel
and on the briefs).
1
Claudia Joy Demitro, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Claudia J. Demitro, of
counsel and on the briefs).
Alexander Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey
(American Civil Liberties Union of New Jersey
Foundation, attorneys; Alexander Shalom and Jeanne
LoCicero, on the brief).
John McNamara, Jr., Chief Assistant Morris County
Prosecutor, argued the cause for amicus curiae County
Prosecutors Association of New Jersey (Francis A.
Koch, President, attorney; John McNamara, Jr., of
counsel and on the brief).
Michael R. Noveck argued the cause for amici curiae
Partners for Women & Justice, New Jersey Coalition
to End Domestic Violence, Essex County Family
Justice Center, New Jersey Crime Victims’ Law
Center, and Rachel Coalition (Gibbons, attorneys;
Michael R. Noveck and Lawrence S. Lustberg, on the
brief).
Oleg Nekritin submitted a brief on behalf of amicus
curiae Association of Criminal Defense Lawyers of
New Jersey (Law Offices of Robert J. De Groot,
attorneys; Oleg Nekritin, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
In this appeal, we consider whether the State can prosecute contempt
charges for a violation of a condition of pretrial release under the Criminal
Justice Reform Act (CJRA or Act).
2
In the two consolidated cases on appeal, both defendants were arrested
and released on non-monetary conditions, pursuant to the CJRA. After
allegedly violating those conditions, each defendant was charged with
contempt, a fourth-degree offense that is contrary to N.J.S.A. 2C:29-9, for a
violation of a court order.
Both trial court judges concluded the Act did not permit the State to
pursue contempt charges. The Appellate Division reversed based on its review
of the statute and its legislative history.
We largely agree with the trial court rulings. Although the plain
language of the CJRA is silent on the issue, the Act’s history reveals the
Legislature did not intend to authorize criminal contempt charges for
violations of release conditions. In fact, during the enactment process, the
Legislature expressly removed the option of contempt proceedings from the
original draft of the bill. In doing so, the Legislature parted company with
other laws it looked to when it crafted the CJRA. Beyond that, allowing
criminal contempt charges for all violations of conditions of release, no matter
how minor, is at odds with the purpose and structure of the CJRA.
No-contact orders are treated differently, however, because the CJRA
did not modify settled law relating to them. Judges regularly enter orders in
domestic violence cases and other matters that bar defendants from contacting
3
witnesses, victims, and others. In State v. Gandhi, 201 N.J. 161 (2010), the
Court held that violations of no-contact orders -- even if issued as part of a
pretrial release order -- can serve as a basis for contempt charges. That
precedent remains firmly in place.
Because neither appeal here involved a violation of a no-contact order,
we reverse the judgment of the Appellate Division and dismiss the contempt
charges against both defendants.
I.
A.
On April 16, 2017, defendant Antoine McCray was arrested and charged
with second-degree robbery, in violation of N.J.S.A. 2C:15-1(a)(1). A week
later, the trial court denied the State’s motion for pretrial detention and
released McCray subject to certain non-monetary conditions. One of the
conditions was that he “not commit any offense during the period of release.”
On August 29, 2017, McCray was charged with various theft offenses for
allegedly stealing a wallet out of a stroller and then making fraudulent
purchases with the victim’s credit cards.
A grand jury later indicted McCray for fourth-degree contempt, contrary
to N.J.S.C. 2C:29-9(a), for violating the trial court’s order of pretrial release.
The grand jury also returned separate indictments that charged multiple theft
4
offenses. Pursuant to a plea agreement, McCray pled guilty to the contempt
charge and to four counts of conspiracy to use a credit card fraudulently. The
trial judge advised counsel that he would wait until sentencing to decide
whether to accept the plea on the contempt charge. The court invited both
counsel to submit written argument about the validity of the charge.
At sentencing, the same judge, the Honorable Pedro J. Jimenez, Jr.,
J.S.C., dismissed the contempt indictment. In a written opinion, the judge
traced the history and purpose of the CJRA. He noted that the federal and
District of Columbia statutes after which the CJRA was modeled both provide
for contempt prosecutions, but the CJRA does not. Judge Jimenez also
observed that the New Jersey Legislature removed language from earlier drafts
that permitted contempt charges. He concluded the Act provided other means
to address violations of release conditions, and cited to other statutory settings.
After dismissing the contempt indictment, Judge Jimenez sentenced
McCray to four years in prison on the remaining counts to which he had pled
guilty.
B.
Defendant Sahaile Gabourel was arrested and charged with seven counts
of possession and distribution of heroin on July 10, 2018. The trial court
denied the State’s motion to detain Gabourel pretrial and released him subject
5
to a number of conditions. In particular, the judge ordered Gabourel to comply
with a curfew and remain at home from 6 p.m. to 6 a.m.
On July 23, 2018, police officers who knew of the curfew arrested
Gabourel when they saw him on a street corner at 8:09 p.m. The officers
found three Percocet pills in Gabourel’s pocket during a search incident to
arrest. Gabourel was then charged in a two-count complaint with (1) fourth-
degree contempt, contrary to N.J.S.A. 2C:29-9(a), for disobeying the trial
court’s release order and violating the curfew condition; and (2) possession of
Percocet, contrary to N.J.S.A. 2C:35-10.5(a)(1).
After a hearing, the Honorable Paul M. DePascale, J.S.C., revoked the
order of pretrial release and detained Gabourel, pursuant to N.J.S.A. 2A:162-
24. Judge DePascale also concluded “the State may not prosecute a non-
criminal violation of a term or condition of a pretrial release order by way of
contempt.” He succinctly recounted the Act’s legislative history: contempt
“was in the bill,” “was removed, and then the bill was approved.” The judge
also analogized the situation to a violation of a term of probation, which
cannot be prosecuted by contempt “[b]ecause there’s another mechanism
provided by the [probation] statute to deal with that.” Judge DePascale
accordingly dismissed the contempt charge against Gabourel.
6
C.
The Appellate Division consolidated the two cases and reversed in both
of them. State v. McCray, 458 N.J. Super. 473, 478 (App. Div. 2019). The
court first noted that the CJRA’s plain language “does not preclude the State
from charging a defendant with contempt.” Id. at 487. Although language in
an earlier draft that authorized contempt proceedings had been deleted from
the bill, the court observed that no statement from a sponsor or a committee
explained the reason why. Id. at 488-89. Without a statement or some proof
of legislative intent, the Appellate Division stated,
it is reasonable to conclude that the members of the
Legislature believed there was no need to include a
provision in the CJRA similar to the provisions in the
federal [Bail Reform Act] and D.C. Code authorizing a
criminal contempt prosecution for a violation of a
pretrial release order. It is also reasonable to infer that
the members of the Legislature believed a pretrial
release order was a judicial order under N.J.S.A. 2C:29-
9(a) and that statute sufficiently addressed the potential
criminal consequences of a violation of a pretrial
release order.
[Id. at 489.]
Relying in part on the reasoning in Gandhi, the court “conclude[d] that a
pretrial release order is a ‘judicial order’” within the meaning of the contempt
statute and that “a defendant who . . . violates the conditions in the order may
be charged with contempt under N.J.S.A. 2C:29-9(a).” Id. at 490. The court
7
found that defendants’ reliance on State v. Williams, 234 N.J. Super. 84 (App.
Div. 1989), and State in Interest of S.S., 367 N.J. Super. 400 (App. Div. 2004),
was misplaced. McCray, 458 N.J. Super. at 492-93.
The Appellate Division also concluded defendants had sufficient notice
they could be charged with contempt, and that the Double Jeopardy Clause did
not bar McCray’s prosecution for criminal contempt. Id. at 500.
We granted McCray’s petition for certification, 238 N.J. 69 (2019), and
Gabourel’s motion for leave to appeal, 238 N.J. 51 (2019). We also granted
leave to appear as amici curiae to the following organizations: the American
Civil Liberties Union of New Jersey (ACLU); the Association of Criminal
Defense Lawyers of New Jersey (ACDL); the County Prosecutors Association
of New Jersey; and Partners for Women and Justice, the New Jersey Coalition
to End Domestic Violence, Essex County Family Justice Center, New Jersey
Crime Victims’ Law Center, and Rachel Coalition, which filed a consolidated
brief.
II.
Defendants argue that the Appellate Division erred in concluding that
violations of conditions of pretrial release are punishable by prosecutions for
criminal contempt. They contend that the plain language of the CJRA and its
legislative history demonstrate the Legislature rejected contempt as a remedy
8
for a violation of a release condition; that the CJRA contains its own provision
for a violation of pretrial release; that Williams supports their position; that
they did not receive proper notice; and, in McCray’s case, that double jeopardy
principles bar prosecutions for both the new crime and contempt. Defendants
do not contest that violations of no-contact orders can be charged as contempt.
The ACDL’s position largely aligns with defendants. In addition to the
group’s arguments about the language and history of the CJRA, the ACDL
notes that defendants who violated bail conditions before the Act went into
effect were not charged with contempt.
The State maintains the Appellate Division correctly concluded that
defendants can be charged with contempt for violating a condition of pretrial
release. The State argues that nothing in the CJRA precludes contempt
prosecutions, which are consistent with the Act’s purposes; that the plain
language of the contempt statute allows charges to be brought for violations of
release conditions; that differences between the CJRA and both the federal
Bail Reform Act and the D.C. Code do not mean the Legislature intended to
override the plain text of the contempt statute; that Gandhi supports its
position; that defendants had adequate notice they could be charged with
contempt; and that double jeopardy principles do not prevent McCray from
9
being charged with contempt and the underlying new offense he allegedly
committed.
The County Prosecutors Association joins in the State’s arguments.
Among other points, the Association adds that defendants must necessarily
rely on this principle to prevail: that the CJRA impliedly repealed the
contempt statute. According to the Association, defendants cannot satisfy the
high threshold needed to succeed with that claim.
The ACLU proposes what it calls a “workable middle ground” that
would allow contempt charges for violations of no-contact orders but not other
violations of release conditions. The organization echoes defendants’
arguments about the language and history of the CJRA. The ACLU also
contends that the Appellate Division’s ruling would “widen[] the net of people
incarcerated” and “hamper the efficiency of release hearings.”
Partners for Women and Justice and related amici (Partners) argue that
conditions designed to protect victims of domestic violence are a critical part
of pretrial release. The groups submit that criminal contempt charges for
violations of those conditions are consistent with existing case law and
statutes. Partners urge the Court to reaffirm the holding in Gandhi.
10
III.
We look to the language and history of the CJRA to determine whether it
allows for criminal contempt charges when a defendant violates a condition of
pretrial release.
A.
The CJRA ushered in substantial changes to the State’s criminal justice
system. Before the law’s enactment, “New Jersey’s system of pretrial release
relied heavily on the use of monetary bail ‘to insure [the] presence of the
accused at trial.’” State v. Robinson, 229 N.J. 44, 52 (2017) (alteration in
original) (quoting State v. Johnson, 61 N.J. 351, 364 (1972)).
The new law instead relies primarily on pretrial release, accompanied by
non-monetary conditions, “to reasonably assure” that defendants will appear in
court when required, will not endanger “the safety of any other person or the
community,” and “will not obstruct or attempt to obstruct the criminal justice
process.” N.J.S.A. 2A:162-15. The Act “shall be liberally construed” to
achieve those aims. Ibid. When a court finds by clear and convincing
evidence that “no condition or combination of conditions” will realize those
goals, the court, in response to a motion by the prosecutor, can enter an order
to detain a defendant pending trial. Ibid.
11
Section 17 of the Act outlines various non-monetary conditions a court
may order, including the following:
(a) the eligible defendant shall not commit any offense
during the period of release; (b) the eligible defendant
shall avoid all contact with an alleged victim of the
crime; (c) the eligible defendant shall avoid all contact
with all witnesses who may testify concerning the
offense that are named in the document authorizing the
eligible defendant’s release or in a subsequent court
order; and (d) any one or more non-monetary
conditions as set forth in paragraph (2) of this
subsection.
[N.J.S.A. 2A:162-17(b)(1)(a) to (d).]
The twelve additional non-monetary conditions in paragraph (b)(2)
include requiring a defendant to “remain in the custody of a designated
person”; to maintain or seek employment; to maintain or begin an educational
program; to abide by travel restrictions; to comply with a curfew; to refrain
from possessing a firearm or other dangerous weapon; and to refrain from drug
use or the excessive use of alcohol. Id. at (b)(2).
When a court releases a defendant on conditions, it must notify the
defendant of those conditions “in a manner sufficiently clear and specific to
serve as a guide for the eligible defendant’s conduct.” N.J.S.A. 2A:162 -
23(a)(1)(a). In addition, the court shall alert the defendant to “the penalties for
. . . violating a condition of release, which may include the immediate issuance
of” an arrest warrant. Id. at (a)(1)(b).
12
Section 23 adds that “[t]he failure of the court to notify the eligible
defendant of any penalty or consequence for violating a condition of release
. . . shall not preclude any remedy authorized under the law for any violation
committed by the eligible defendant.” Id. at (a)(1).
If a court finds the defendant “has violated a restraining order or
condition of release,” or finds “probable cause to believe that the eligible
defendant has committed a new crime while on release,” the judge
may not revoke the eligible defendant’s release and
order that the eligible defendant be detained pending
trial unless the court, after considering all relevant
circumstances including but not limited to the nature
and seriousness of the violation or criminal act
committed, finds clear and convincing evidence that no
monetary bail, non-monetary conditions of release or
combination of monetary bail and conditions would
reasonably assure the eligible defendant’s appearance
in court when required, the protection of the safety of
any other person or the community, or that the eligible
defendant will not obstruct or attempt to obstruct the
criminal justice process.
[N.J.S.A. 2A:162-24.]
Implicit in that language is the authority to impose additional conditions, short
of detention, if a judge finds a defendant violated a condition of pretrial
release but does not meet the standard for detention.
Neither section 23 nor 24 of the Act addresses whether prosecutors may
pursue contempt charges for a violation of a release condition.
13
Under Rule 3:26-2(c), judges have the authority to set new conditions of
release on their own motion, or a motion by the prosecution, when “a material
change in circumstance . . . justifies a change in conditions.” R. 3:26-2(c)(2).
Consistent with the statute, Rule 3:26-2(d)(1) authorizes the court to revoke
the defendant’s release and enter an order of detention for a violation of a
condition of pretrial release only if, upon a motion by the prosecution, the
court finds that no combination of conditions would reasonably ensure against
the risk of flight, danger, or obstruction. Like the statute, the Rule does not
mention contempt sanctions.
B.
To interpret the meaning and scope of a statute, we look for the
Legislature’s intent. Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531,
540-41 (2012). We start with “the statute’s plain language, which is typically
the best indicator of intent.” In re T.B., 236 N.J. 262, 274 (2019) (citing
DiProspero v. Penn, 183 N.J. 477, 492 (2005)). If the language is clear, our
task is complete. Ibid. Here, the CJRA neither mentions contempt as a
possible sanction for a violation of a condition of release nor authorizes
prosecutors to pursue contempt charges.
Because the text of the statute is silent as to whether contempt charges
can be brought for violations of pretrial release, we turn to the Act’s legislative
14
history for guidance. See Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64,
75 (2004); Burns v. Belafsky, 166 N.J. 466, 473 (2001). That history is
revealing.
1.
In many ways, the Legislature patterned the CJRA after the federal Bail
Reform Act of 1984, 18 U.S.C. §§ 3141 to 3156, and the District of
Columbia’s statutory framework for pretrial detention, D.C. Code §§ 23 -1321
to -1333. Robinson, 229 N.J. at 56. Both laws expressly provide for contempt
prosecutions to address violations of conditions of pretrial release.
A section of the Federal Bail Reform Act, 18 U.S.C. § 3148(a), provides
that “[a] person who has been released pursuant to the provisions of [18 U.S.C.
§ 3142], and who has violated a condition of his release, is subject to a
revocation of release, an order of detention, and a prosecution for contempt of
court.” The court can commence a prosecution for contempt under 18 U.S.C.
§ 401. 18 U.S.C. § 3148(c). Willful disobedience of a court order that also
constitutes a criminal offense against the United States or a state can be
prosecuted under 18 U.S.C. § 402. Richmond Black Police Officers Assoc. v.
Richmond, 548 F.2d 123, 127 n.3 (4th Cir. 1977).
The District of Columbia’s Code similarly provides that “[a] person who
has been conditionally released pursuant to [the D.C. Code] and who has
15
violated a condition of release shall be subject to revocation of release, an
order of detention, including an order of temporary detention . . . and
prosecution for contempt of court.” D.C. Code § 23-1329(a). Either the court
or the prosecution can initiate a contempt proceeding. Id. at (c).
2.
The original text of the CJRA, introduced in both the Assembly and the
Senate in January 2014, specifically referred to criminal contempt. The first
section of the original draft bill, as introduced in both chambers, stated that the
new law
shall be liberally construed to effectuate the purpose of
relying upon contempt of court proceedings or criminal
sanctions instead of financial loss to ensure the
appearance of the defendant, that the defendant will not
pose a danger to any person or the community, and that
the defendant will comply with all conditions of bail.
[S. 946/A. 1910, § 1 (Jan. 2014) (emphasis added).]
The draft bill also included the following provision:
In addition to revocation of release as authorized by this
section, a violation of a condition of pretrial release . . .
may subject the defendant to civil contempt, criminal
contempt, forfeiture of bail, or any combination of
these sanctions and any other sanctions authorized by
law.
[Id. § 9(c) (emphasis added).]
16
In addition, the sponsors’ statements at the end of the original draft bills
explain that “a defendant who violates pretrial release conditions may be
subject to civil contempt, criminal contempt, forfeiture of bail, or any
combination of those sanctions imposed by the court.” Sponsors’ Statement to
S. 946/A. 1910 (Jan. 2014) (emphasis added).
The Senate Judiciary Committee favorably reported on the draft bill on
March 24, 2014. S. Judiciary Comm. Statement to S. 946 (Mar. 24, 2014). In
an accompanying statement, the Committee restated the above comment -- “a
defendant who violates pretrial release conditions may be subject to civil
contempt, criminal contempt, forfeiture of bail, or any combination of those
sanctions imposed by the court.” Ibid.
On June 5, 2014, the Senate Budget and Appropriations Committee
favorably reported on the bill with committee amendments. S. Budget &
Appropriations Comm. Statement to S. 946 (June 5, 2014). The Committee’s
Statement, however, made no mention of contempt. Ibid. As to violations of
conditions of pretrial release, the Statement noted that
[w]henever a person was released, the court would
notify the person of the conditions, if any, to which the
release is subject, as well as the consequences for
violating any such conditions, including the immediate
issuance of a warrant for the person’s arrest, and the
criminal penalties for any such violation.
17
[Ibid.]
In the second and third reprints of the draft legislation, references to
contempt appeared in bold-faced brackets along with the following notation:
“Matter enclosed in bold-faced brackets . . . is not enacted and is intended to
be omitted in the law.” S. 946 (Second Reprint, June 12, 2014; Third Reprint,
July 31, 2014); A. 1910 (Second Reprint, June 23, 2014; Third Reprint, August
4, 2014).
To be clear, the bill’s “purpose of relying upon contempt of court
proceedings or criminal sanctions” was removed, as was language that would
“subject the defendant to civil contempt, criminal contempt, forfeiture of bail,
or any combination of these sanctions and any other sanctions authorized by
law” for a violation of a condition of pretrial release. Ibid.
The final version of the legislation, signed into law on August 11, 2014,
does not include any reference to contempt. L. 2014, c. 31 (codified at
N.J.S.A. 2A:162-15 to -26).
3.
The record is silent as to why the Legislature removed language about
contempt during the enactment process. The Appellate Division inferred two
reasons. First, the court thought it “reasonable to conclude” that legislators
“believed there was no need to include” such a provision. McCray, 458 N.J.
18
Super. at 489. Second, the court inferred “the Legislature believed a pretrial
release order was a judicial order” covered by N.J.S.A. 2C:29-9(a) and thus
subject to criminal contempt. Ibid.
As to the first point, a stronger claim can be made that the Legislature
considered and rejected the possibility of contempt charges for violations of
release conditions under the CJRA. A number of sound reasons support that
conclusion.
First, “[c]ourts regularly understand the legislative intent behind a final
enactment in terms of . . . changes proposed to the bill during the process of
enactment.” 2A Norman J. Singer & Shambie Singer, Sutherland Statutes and
Statutory Construction § 48:18 (7th ed. 2017). It is generally understood that
“legislatures reject an amendment because they do not intend a bill to include
the provisions in the rejected amendment. . . . Conversely, legislatures
generally adopt amendments because they intend to change the original bill.”
Ibid. Here, the Legislature amended the original bill to remove contempt of
court proceedings as an option -- an indication of its intent.
This is not a case in which the CJRA impliedly repealed the applicability
of the contempt statute. The Legislature instead expressly removed contempt
proceedings from the text of the Act.
19
Second, the Legislature chose to part company with the federal Bail
Reform Act and the D.C. Code when it struck language about contempt that
appears in both of those laws. As we noted in Robinson, “the Legislature
looked to both laws among others when it framed New Jersey’s reform
measure.” 229 N.J. at 56. “[I]f a legislature enacts a new law already in effect
in another state under circumstances indicating it had the other state’s statute
in mind, the foreign statute is relevant to construe the domestic one.”
Sutherland § 51:6. Beyond that, in certain circumstances, “[l]egislation that is
different from that common in other states, but on the same subject, typically
manifests a legislative purpose to accomplish legal results different from those
in other states.” Ibid. Here, the Legislature pointedly chose a different path
from other state laws it considered. Those laws provided for contempt
prosecutions, but the Legislature stripped that concept from the draft CJRA.
The legislative history is instructive in yet another way. The Court in
Robinson recounted a series of steps leading up to the passage of the CJRA.
Those steps included the Judiciary’s establishment of the Joint Committee on
Criminal Justice, which was comprised of representatives of all three branches
of government. Robinson, 229 N.J. at 53. Months after the Committee issued
its report in March 2014, many of its recommendations on the need for bail
reform and a new speedy trial act were enacted into law. Compare Report of
20
the Joint Comm. on Criminal Justice 8-10 (Mar. 10, 2014), https://www.
njcourts.gov/courts/assets/criminal/finalreport3202014.pdf (JCCJ Report),
with N.J.S.A. 2A:162-15 to -26.
Among other issues, the Committee recommended a progressive
approach to enforce compliance with conditions of pretrial release. JCCJ
Report at 65. The Committee noted that minor violations could be addressed
with administrative sanctions, like additional contacts with a pretrial services
officer, and more serious violations might call for notifications to the court.
Ibid. (citing Pretrial Justice Institute, Pretrial Services Program
Implementation: A Starter Kit; Vera Institute of Justice, Evidence-Based
Practices in Pretrial Screening and Supervision). If progressively enforced
sanctions did not succeed, the Committee envisioned more severe sanctions
like “the revocation of release and remand back into custody.” Ibid. The
Committee did not recommend criminal contempt charges for violations of
release conditions.
Section 24 of the CJRA follows that approach. It allows for revocation
of release and an order of detention for a violation of a release condition only
if the State meets the requisite high standard: a showing by clear and
convincing evidence that the defendant poses a significant risk of flight,
danger, or obstruction, which no combination of conditions can protect
21
against. N.J.S.A. 2A:162-24. In less serious situations, courts may impose
additional conditions that are less restrictive than detention.
That calibrated approach is at odds with the State’s interpretation -- that
the Act permits prosecutors to charge defendants with criminal contempt, a
fourth-degree crime, for a violation of any release condition. Under the State’s
reading of the law, for example, if a defendant missed a single court
appearance, the State could charge the person with a crime of the fourth degree
for violating a “court order.”
To be sure, if prosecutors had the authority to prosecute every violation
under the contempt statute, they would exercise discretion and could decline to
bring charges for minor violations. But the broad-based proposition the State
advances undermines the CJRA’s goals. Once again, the law provides for
progressive enforcement of violations of pretrial release conditions. Ibid.
Viewed more broadly, the Act favors pretrial release on non-monetary
conditions over the prior practice of holding poor defendants who posed
minimal risk in custody. N.J.S.A. 2A:162-15; see also JCCJ Report. And the
CJRA provides for detention only for high-risk defendants. N.J.S.A. 2A:162-
18, -19. It is difficult to glean from those principles that the Legislature
intended to allow contempt prosecutions for any and all violations of
conditions of release, no matter how minor.
22
The State, as well as the Appellate Division, also relies on the language
of the contempt statute for support: “A person” who “purposely or knowingly
disobeys a judicial order or protective order” can be found guilty of a crime.
N.J.S.A. 2C:29-9(a). Because an order of release is a court order, the State
submits, a violation of the order is subject to contempt charges.
Viewed in isolation, the argument has some persuasive force. But we
cannot ignore the legislative history recounted above. The Legislature
considered and rejected contempt sanctions during the drafting stage, despite
looking to other laws that embraced that approach.
We note as well that N.J.S.A. 2C:29-9 states that a violation of an order
entered under any of the following statutes or circumstances may be subject to
a contempt prosecution: the Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35; the Sexual Assault Survivor Protection Act, N.J.S.A. 2C:14-
13 to -21; the Extreme Risk Protective Order Act, N.J.S.A. 2C:58-20 to -32;
and a restraining order based on a conviction for stalking or, in certain
circumstances, an allegation of stalking, N.J.S.A. 2C:12-10.1, -10.2. N.J.S.A.
2C:29-9(b) to (e). Although the contempt statute has been amended four times
since the enactment of the CJRA, the Legislature did not add the CJRA to that
list. See L. 2015, c. 141, § 1 (eff. Nov. 9, 2015); L. 2015, c. 147, § 10 (eff.
23
May 7, 2016); L. 2016, c. 93, § 3 (eff. Jan. 9, 2017); L. 2018, c. 35, § 12 (eff.
Sept. 1, 2019).
Because we rely heavily on language and legislative history that is
particular to the CJRA, we need not consider case law from other contexts at
length. In Williams, the Appellate Division focused on the probation statute
and concluded that “[c]ontempt of court should not be superimposed as an
additional remedy in a probation violation setting if the act that occasions the
violation itself is not otherwise criminal.” 234 N.J. Super. at 91.
In S.S., the Appellate Division held “it is contrary to the legislative
intent expressed in the New Jersey Code of Juvenile Justice, and unjustified
under existing statutory and common law, for a juvenile status offender to be
adjudicated delinquent” for contempt for acts that do not violate the criminal
code. 367 N.J. Super. at 402. The court emphasized “the overriding goal of
the juvenile justice system is rehabilitation, not punishment.” Id. at 407. This
Court affirmed for substantially the same reasons. State in Interest of S.S.,
183 N.J. 20, 21-22 (2005).
In both rulings, the Appellate Division discussed remedies other than
contempt under the respective statutory schemes. See Williams, 234 N.J.
Super. at 90-91 (revocation of probation and resentencing under N.J.S.A.
24
2C:45-3(a)); S.S., 367 N.J. Super. at 409-10 (enforcement of litigant’s rights
under N.J.S.A. 2A:4A-86).
To the extent the analysis in those cases applies here, it does not
undermine our conclusion.
C.
No-contact orders under the CJRA are treated differently. Violations of
such orders can be prosecuted under the contempt statute.
The CJRA empowers judges to direct defendants on pretrial release to
“avoid all contact with an alleged victim of the crime” and “with all
witnesses.” N.J.S.A. 2A:162-17(b)(1)(b), (b)(1)(c). Trial courts, of course,
had that same authority before the CJRA went into effect. And prior case law
established that no-contact orders entered as part of a bail proceeding could be
enforced through criminal contempt charges. See Gandhi, 201 N.J. at 190.
Gandhi, decided by this Court in 2010, plainly set forth that principle.
Id. at 190-91. In that case, the defendant was obsessed with a woman and
repeatedly violated judicial no-contact orders. After a harassment complaint
was filed against him in municipal court and the judge directed him not to have
any contact with the victim, he showed up at the young woman’s home. Id. at
171-72. His conduct prompted another harassment complaint, after which he
again violated the court’s order by telephoning the family residence and
25
showing up there. Id. at 172. The police arrested him, and a municipal court
judge set bail the next day with the following condition: “no victim contact[,]
no return to scene.” Id. at 173.
While on release, the defendant “resumed sending sexually explicit and
physically threatening messages to” the victim by mail. Ibid. Bail was
revoked, he was jailed, and a judge increased his bail and expanded the no-
contact order. Ibid. The defendant then sent the victim 142 pages of
handwritten letters with graphic and disturbing content. Ibid.
Ultimately, a grand jury indicted the defendant for stalking as well as
multiple counts of contempt for violating the court orders. Id. at 173-74. A
jury convicted him, and the violations of no-contact orders provided a basis to
elevate a stalking conviction to a third-degree offense. Id. at 174.
Among other arguments on appeal, the defendant claimed that violations
of bail orders that contained no-contact provisions could lead only to
revocation and forfeiture of his bail, not contempt charges. Id. at 188. The
Court disagreed. It explained that “[t]he no-contact orders in defendant’s bail
orders did not lose their character as judicial no-contact orders merely because
bail consequences could attach for their violation.” Id. at 190. The Court
found that the defendant’s “flagrant violation” of the judicial no-contact orders
26
provided an adequate basis to elevate a stalking charge and to support criminal
contempt charges. Id. at 190-91.
Courts “presume that the Legislature is familiar with existing case law.”
Great Atl. & Pac. Tea Co. v. Borough of Point Pleasant, 137 N.J. 136, 148
(1994); see also Johnson v. Scaccetti, 192 N.J. 256, 276 (2007) (“A well-
established canon of statutory interpretation is that the Legislature ‘is
presumed to be aware of judicial construction of its enactments.’” (quoting
DiProspero, 183 N.J. at 494)). And nothing in the CJRA or its legislative
history suggests the Legislature intended to overrule the prevailing law in
Gandhi. As a result, defendants who violate no-contact orders that are
included as conditions of release can still be prosecuted for contempt.
That principle extends beyond domestic violence cases. It applies to any
order not to contact a victim or witness in domestic violence, stalking,
harassment, or other matters. In addition, as noted earlier, the contempt statute
specifically provides for contempt prosecutions for violations of the
Prevention of Domestic Violence Act, Sexual Assault Survivor Protection Act,
Extreme Risk Protective Order Act, and restraining orders based on a
conviction for stalking, or an allegation of stalking in certain circumstances.
N.J.S.A. 2C:29-9(b) to (e).
27
IV.
Neither defendant in this appeal was charged with violating a no-contact
order. Defendant McCray allegedly committed theft and credit card related
fraud in violation of his release conditions; defendant Gabourel allegedly
violated a curfew provision in his release order. Because those allegations did
not provide a basis for criminal contempt charges, the trial judges properly
dismissed them. Our ruling does not affect the other offenses charged.
In light of the dismissal of the contempt charges, we need not address
defendants’ remaining arguments about lack of notice or double jeopardy.
V.
For the reasons outlined above, we reverse the judgment of the Appellate
Division. We reinstate the orders of the trial court dismissing the contempt
charges against both defendants.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
28