State of New Jersey v. Amed Ingram

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1787-16T6
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, March 1, 2017
v. APPELLATE DIVISION
AMED INGRAM,
Defendant-Appellant.
_____________________________________________
Argued February 14, 2017 – Decided March 1, 2017
Before Judges Messano, Espinosa and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County, Docket
No. W-2017-000005-0408.
Joseph E. Krakora, Public Defender, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Margaret M.
Butler, Assistant Deputy Public Defender, of
counsel and on the brief).
Linda A. Shashoua, Assistant Prosecutor,
argued the cause for respondent (Mary Eva
Colalillo, Camden County Prosecutor,
attorney; Kevin J. Hein, Assistant
Prosecutor, of counsel and on the brief).
Claudia Joy Demitro, Deputy Attorney
General, argued the cause for amicus curiae
Office of the Attorney General (Christopher
S. Porrino, Attorney General, attorney; Ms.
Demitro, on the brief).
Alexander Shalom argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (American Civil Liberties Union of
New Jersey, attorneys; Mr. Shalom, Edward L.
Barocas and Jeanne LoCicero, on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
Defendant Amed Ingram appeals from the Law Division's
January 5, 2017, order granting the State's motion to detain
defendant pre-trial pursuant to the Bail Reform Act, N.J.S.A.
2A:162-15 to -26 (the Act). Defendant was arrested in Camden on
January 1, 2017, and charged in a complaint-warrant with:
second-degree illegal possession of a handgun, N.J.S.A. 2C:39-
5(b)(1); second-degree possession of a firearm with intent to
use it unlawfully, N.J.S.A. 2C:39-4(a)(1); second-degree
possession of a firearm by certain persons previously-convicted,
N.J.S.A. 2C:39-7(b)(1); and fourth-degree receipt of a defaced
firearm, N.J.S.A. 2C:39-9(e). The affidavit of probable cause
supporting the complaint-warrant stated that defendant was found
to be in possession of a defaced handgun and had previously been
convicted of possession of a controlled dangerous substance
(CDS) on school property, in violation of N.J.S.A. 2C:35-7.1
1
The record reveals that defendant had two prior convictions for
distributing, dispensing or possessing with intent to distribute
CDS within one-thousand feet of school property. N.J.S.A.
2C:35-7(a).
2 A-1787-16T6
At the pre-trial detention hearing on January 5, 2017, the
prosecutor submitted the complaint-warrant, the affidavit of
probable cause, the Public Safety Assessment (PSA),2 the
Preliminary Law Enforcement Incident Report (PLEIR)3 and
defendant's criminal history. During an earlier hearing
regarding a different defendant, defense counsel had lodged an
objection to the State's proffer of only documentary evidence,
which she renewed and incorporated by reference at defendant's
hearing.4 Judge Edward J. McBride overruled the objection and
admitted the documents in evidence.
Collectively, the complaint-warrant, affidavit of probable
cause and PLEIR stated defendant was in possession of a defaced
2
The Act required the Administrative Director of the Courts (the
Director) to "establish and maintain a Statewide Pretrial
Services Program which shall provide pretrial services to
effectuate the [Act's] purposes[.]" N.J.S.A. 2A:162-25(a).
Among other responsibilities, the Pretrial Services Program
(PSP) must "conduct a risk assessment on [an] eligible defendant
for the purpose of making recommendations to the court
concerning an appropriate pretrial release decision," utilizing
"a risk assessment instrument approved by the . . . Director"
that meets certain criteria. N.J.S.A. 2A:162-25(b) and (c).
The PSA was the approved risk assessment instrument. See Admin.
Office of the Courts, "New Jersey Judiciary Pretrial Services
Manual," at 16 (Dec. 27, 2016).
3
Our colleagues described in detail the genesis and intended
purpose of the PLEIR in State v. Robinson, ___ N.J. Super. ___,
___ n.2 (App. Div.) (slip op. at 3), leave to appeal granted,
___ N.J. ___ (2017).
4
The transcript of the prior proceeding is part of the appellate
record.
3 A-1787-16T6
Hi-Point model JHP .45 caliber handgun loaded with eight rounds,
the officer who swore out the complaint-warrant and another
officer "personally observed the offense[s]," the weapon had
been discharged and the gun and spent shell casings were
"seized/recovered." Relying on these documents, Judge McBride
concluded the State established probable cause that defendant
committed the crimes charged in the complaint-warrant.
In further support of the detention motion, the prosecutor
relied primarily on the PSA, which rated defendant's risk for
both failing to appear (FTA), and new criminal activity (NCA),
as six, the highest score on the PSA. The PSA, however, did not
include a "flag" highlighting a risk of new violent criminal
activity (NVCA). The PSA revealed defendant, who was twenty-
five years old, had an extensive criminal record and a history
of failing to appear. Defendant had a pending charge of simple
assault, N.J.S.A. 2C:12-1(a)(1), as well as five prior
indictable convictions, some of which resulted in incarceration.
He was on probation and had failed to appear in court five times
in the past. Release was not recommended, and if defendant were
released, it should be conditioned upon home detention with
electronic monitoring.
Defense counsel argued defendant was a lifelong county
resident, currently resided with his aunt, had a six-month old
4 A-1787-16T6
child whom he saw on a daily basis, was employed for the last
four or five months and had previously been employed elsewhere.
She urged Judge McBride to release defendant with the highest
level of monitoring, including electronic monitoring.
Judge McBride concluded the recommendation of Pretrial
Services was "prima facie evidence sufficient to overcome by
clear and convincing evidence the presumption of release." See
R. 3:4A(b)(5). He also considered: the nature and
circumstances of the offense, noting the weapons offenses were
punishable under the Graves Act, N.J.S.A. 2C:43-6(c), and
conviction of the certain persons offense carried a minimum five
year period of incarceration; the weight of the State's
evidence, including the officers' personal observations;
defendant's serious criminal record, including a juvenile
delinquency adjudication for a serious offense; and defendant's
current status as a probationer.5 Judge McBride found by clear
and convincing evidence that "no amount of monetary bail, non-
monetary conditions or combination" of both "would reasonably
assure[] defendant’s appearance in court when required [and/or]
the protection of the safety of any other person or the
5
The prosecutor offered a document that detailed defendant's New
Jersey criminal history, which apparently included defendant's
history of juvenile delinquency adjudications. The document is
not in the record, and the PSA does not include juvenile
adjudications.
5 A-1787-16T6
community." See N.J.S.A. 2A:162-19(e)(3). The order granting
the State's detention motion comprehensively reflects Judge
McBride's findings and conclusions.
Defendant filed this appeal as of right. N.J.S.A. 2A:162-
18(c); R. 2:9-13(a). Thereafter, we granted motions filed by
the Attorney General and the American Civil Liberties Union
(ACLU) to appear as amici.
As he did before Judge McBride, defendant argues that
permitting the State to establish probable cause at the
detention hearing solely by proffer, without calling "live
witnesses" or presenting "live testimony," violates due process
and the Act. At oral argument before us, defendant further
contended that the witness must have some personal knowledge of
the case, so there is an opportunity for meaningful cross-
examination. Defendant also argues the State failed to meet its
burden of proof justifying pretrial detention. The ACLU submits
that permitting the State to prove probable cause and grounds
for detention solely by proffer violates a defendant's right to
due process.
To the contrary, the State argues that proceeding by
proffer violates neither defendant's due process rights nor the
Act, and that, in this case, Judge McBride properly "exercised
[his] discretion" and found the State met its burden of proof.
6 A-1787-16T6
The Attorney General submits that proceeding by proffer at pre-
trial detention hearings does not violate the Act or a
defendant's due process rights.
Having considered these arguments, in light of the record
and applicable legal standards, we affirm.
I.
Except as necessary to resolve the issues before us, we
need not detail the legislative history of the Act, or its
underlying public policy goals, which our colleagues so capably
explained in Robinson, supra, ___ N.J. Super. at ___ (slip op.
at 7-17). The Act permits a prosecutor to seek pretrial
detention of a defendant arrested for certain enumerated crimes
or offenses, including Graves Act crimes, N.J.S.A. 2A:162-
19(a)(5), or for "any other crime for which the prosecutor
believes there is a serious risk that" the defendant will "not
appear in court as required," "pose a danger to any other person
or the community," or "obstruct or attempt to obstruct justice,
or threaten, injure, or intimidate, or attempt to threaten,
injure or intimidate, a prospective witness or juror"
(collectively, grounds for detention), N.J.S.A. 2A:162-
19(a)(7)(a)-(c).
If the court "finds probable cause that the eligible
defendant" committed murder or a crime potentially punishable by
7 A-1787-16T6
life imprisonment, then "there shall be a rebuttable presumption
that the eligible defendant shall be detained pending trial,"
and the defendant can rebut that presumption by a preponderance
of evidence. N.J.S.A. 2A:162-19(b) and (e)(2). For other
crimes, or where a defendant successfully rebuts the presumption
of detention, the prosecutor must establish grounds for
detention by clear and convincing evidence. N.J.S.A. 2A:162-
19(e)(3).
The Act provides that "[i]n pretrial detention proceedings
for which there is no indictment, the prosecutor shall establish
probable cause that the eligible defendant committed the
predicate offense." N.J.S.A. 2A:162-19(e)(2). Upon a finding
of probable cause, the judge must answer the critical question:
"whether any amount of monetary bail or non-monetary conditions
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, and that the eligible defendant will not
obstruct or attempt to obstruct the criminal justice process."
N.J.S.A. 2A:162-19(c).
At the detention hearing, a defendant has a right to be
represented by counsel and "shall be afforded an opportunity to
testify, to present witnesses, to cross-examine witnesses who
8 A-1787-16T6
appear at the hearing, and to present information by proffer or
otherwise." N.J.S.A. 2A:162-19(e)(1). The rules of evidence do
not apply, N.J.S.A. 2A:162-19(e)(1), and "[t]he hearing may be
reopened" prior to trial "if the court finds . . . information
exists" that "has a material bearing" on its decision regarding
grounds for detention, N.J.S.A. 2A:162-19(f).
A.
Citing the United States and New Jersey Constitutions,
defendant argues due process "mandates" the State present "a
live witness at the preventive detention hearing." Relying
largely on the reasoning of federal courts, which have
consistently permitted the government to proceed by proffer
under the analogous federal statutory scheme, and our own
jurisprudence predating the Act, we disagree.
The United States Constitution provides that no State shall
"deprive any person of life, liberty, or property, without due
process of law." U.S. Const. amend. XIV, § 1. Our Supreme
Court has explained, "Article I, paragraph 1 of the New Jersey
Constitution does not enumerate the right to due process, but
protects against injustice and, to that extent, protects 'values
like those encompassed by the principle[] of due process.'" Doe
v. Poritz, 142 N.J. 1, 99 (1995) (alteration in original)
(quoting Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985)). "Due
9 A-1787-16T6
process is 'a flexible [concept] that depends on the particular
circumstances.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003)
(alteration in original) (quoting Doe, supra, 142 N.J. at 106).
In examining a procedural due process claim, we first
"assess whether a liberty or property interest has been
interfered with by the State," and then determine "whether the
procedures attendant upon that deprivation are constitutionally
sufficient." Doe, supra, 142 N.J. at 99. Since pre-trial
detention clearly implicates defendant's liberty interest, we
focus only on whether the procedures defined or otherwise
implied by the Act are sufficient.
In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed.
2d 54 (1975), the United States Supreme Court considered
"whether a person arrested and held for trial under a
prosecutor's information is constitutionally entitled to a
judicial determination of probable cause for pretrial restraint
of liberty." Id. at 105, 95 S. Ct. at 858, 43 L. Ed. 2d at 60.
Recognizing that detention could "imperil the suspect's job,
interrupt his source of income, and impair his family
relationships," the Court held that "the detached judgment of a
neutral magistrate is essential" if the constitutional guarantee
of due process "is to furnish meaningful protection from
unfounded interference with liberty." Id. at 114, 95 S. Ct. at
10 A-1787-16T6
863, 43 L. Ed. 2d at 65. Accordingly, the Court held that due
process "requires a judicial determination of probable cause as
a prerequisite to extended restraint of liberty following
arrest." Ibid.However, the Gerstein Court rejected the contention that
procedures for determining probable cause "must be accompanied
by the full panoply of adversary safeguards," including the
rights to counsel and to confront, cross-examine, and subpoena
witnesses. Id. at 119, 95 S. Ct. at 866, 43 L. Ed. 2d at 68.
The Court explained:
These adversary safeguards are not essential
for the probable cause determination
required by the Fourth Amendment. The sole
issue is whether there is probable cause for
detaining the arrested person pending
further proceedings. This issue can be
determined reliably without an adversary
hearing. The standard is the same as that
for arrest. That standard — probable cause
to believe the suspect has committed a crime
— traditionally has been decided by a
magistrate in a nonadversary proceeding on
hearsay and written testimony, and the Court
has approved these informal modes of proof.
[Id. at 120, 95 S. Ct. at 866, 43 L. Ed. 2d
at 69 (emphasis added).]
Additionally, the Gerstein Court "recognize[d] the
desirability of flexibility and experimentation by the States"
in developing appropriate pretrial procedures, and held that
"[w]hatever procedure a State may adopt, it must provide a fair
11 A-1787-16T6
and reliable determination of probable cause as a condition for
any significant pretrial restraint of liberty, and this
determination must be made by a judicial officer either before
or promptly after arrest." Id. at 124-25, 95 S. Ct. at 868-69,
43 L. Ed. 2d at 71-72. "[J]udicial determinations of probable
cause within 48 hours of arrest will, as a general matter,
comply with the promptness requirement of Gerstein." Cty. of
Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 1670,
114 L. Ed. 2d 49, 63 (1991).
Our jurisprudence recognizes that a timely judicial
determination of probable cause must accompany any significant
deprivation of an individual's liberty. See State v. Gonzalez,
114 N.J. 592, 604 (1989) (noting where a suspect "is to be
detained for any significant amount of time," a determination of
probable cause is "of constitutional dimension" (citing
Gerstein, supra, 420 U.S. at 114, 95 S. Ct. at 863, 43 L. Ed. 2d
at 65)). Historically, our court rules have delineated a
process that passes constitutional muster.
Rule 3:3-1(a)(1) permits the issuance of an arrest warrant
only upon a finding of probable cause made by a judicial
officer. When a person is arrested without a warrant, Rule 3:4-
1(b) requires that the complaint-warrant (CDR-2) must be
presented to a judicial officer within twelve hours to determine
12 A-1787-16T6
whether process shall issue in accordance with Rule 3:3-1. In
State v. Tucker, 137 N.J. 259, 271 (1994), the Court concluded
prior iterations of these rules provided the necessary
constitutional guarantees required by Gerstein and McLaughlin,
i.e., a timely judicial determination of probable cause in order
to detain. See also Pressler & Verniero, Current N.J. Court
Rules, comment on R. 3:4-1 (2017).
Rule 3:4-2(c)(8) provides that at the first appearance, the
judge must "inform the defendant of his or her right to have a
hearing as to probable cause and of his or her right to
indictment by the grand jury and trial by jury." Rule 3:4-3(a)
provides, in pertinent part:
If the defendant does not waive a hearing as
to probable cause and if before the hearing
an indictment has not been returned against
the defendant . . . , after notice to the
county prosecutor a judge of the Superior
Court shall hear the evidence offered by the
State within a reasonable time and the
defendant may cross-examine witnesses
offered by the State. If, from the
evidence, it appears to the court that there
is probable cause to believe that an offense
has been committed and the defendant has
committed it, the court shall forthwith bind
the defendant over to await final
determination of the cause; otherwise, the
court shall discharge the defendant from
custody if the defendant is detained.
These procedures are "[i]n keeping with" Gerstein's holding that
"a defendant may not be retained in custody in the absence of
13 A-1787-16T6
probable cause." Pressler & Verniero, supra, comment on R.
3:4-3.
There are some obvious parallels between probable cause
hearings held pursuant to Rule 3:4-3(a), and the Act's
requirement that, absent specific circumstances not applicable
here, the State must establish probable cause at a pretrial
detention hearing. Both hearings occur after arrest but before
indictment, and the return of an indictment obviates the need
for any judicial determination of probable cause. Also, the
rules of evidence do not apply in either proceeding, and the
defendant has the right to representation and cross-examination
in both. The Act provides the defendant with the additional
opportunity to present evidence. N.J.S.A. 2A:162-19(e)(1).6
However, "[t]he probable cause hearing provided for by
[Rule 3:4-3(a)] is neither a constitutionally guaranteed stage
nor an essential component of the prosecution, and may, in any
case, be superseded by the grand jury's prior return of an
indictment." Pressler & Verniero, supra, comment on R. 3:4-3;
6
Defendants have no right to present evidence at a hearing held
pursuant to Rule 3:4-3(a). In re State ex rel. A.D., 212 N.J.
200, 218-19 (2012). Because the issue is not before us, we
specifically do not consider the nature and scope of a
defendant's ability at a pretrial detention hearing "to present
witnesses . . . and to present information by proffer or
otherwise." N.J.S.A. 2A:162-19(e)(1).
14 A-1787-16T6
see also State v. Smith, 32 N.J. 501, 536 (1960) ("The right [to
a preliminary hearing] was not known at the common law and is
not a constitutional requirement." (citations omitted)), cert.
denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961);
State v. Mitchell, 164 N.J. Super. 198, 201 (App. Div. 1978) ("A
preliminary hearing is not an essential part of criminal
procedures.").7
7
A noted commentator has observed that, as a practical matter, a
probable cause hearing under Rule 3:4-3 "rarely occurs."
Leonard N. Arnold, New Jersey Practice Series, Criminal Practice
and Procedure, Vol. 31, § 9:1 (2016-17 Ed.). Rather, "[i]t has
become common for defendants to waive the probable cause hearing
because defense counsel believe that the expanded rules of pre-
trial discovery provide the defense with the same information
that might be obtained at the probable cause hearing." Id. at
§ 9:4. Moreover, a probable cause hearing will not occur if an
indictment is returned before the scheduled date. Id. at § 9.2,
§ 9.4; R. 3:4-3(a).
In 1971, the Supreme Court's Special Committee on Calendar
Control — Criminal, recommended a number of procedural changes,
including elimination of the probable cause hearing provided by
Rule 3:4-3. New Jersey Law Journal, "Report of Supreme Court's
Special Committee on Calendar Control — Criminal," 94 N.J.L.J.
Index Page 185 (1971).
The experience of judges and prosecutors as
well as defense counsel indicates that under
present practice the probable cause hearing
in the municipal court held pursuant to Rule
3:4-3 serves principally as a means of
discovery, for which ample provision is made
under Rule 3:13-3 . . . . The small
percentage [of cases where no probable cause
is found] hardly warrants perpetuation of a
practice which in essence duplicates the
function of the Grand Jury . . . .
(continued)
15 A-1787-16T6
Moreover, in implementing the Act, the Court adopted a
comprehensive rule specifically codifying procedures governing
pre-trial detention motions filed by the prosecutor. Rule
3:4A(b)(2) requires that, at the hearing on the prosecutor's
motion and in the absence of an indictment, "the prosecutor
shall establish probable cause that the defendant committed the
predicate offense." However, the new Rule does not incorporate
Rule 3:4-3(a) by reference or otherwise.
Our court rules clearly permit the State to establish
probable cause, ex parte before a judicial officer, by merely
presenting "the complaint or an accompanying affidavit or
deposition." R. 3:3-1(a); R. 3:4-1(b). Our rules do not
specify and neither party has brought to our attention any New
Jersey precedent that holds how the State must proceed in
establishing probable cause, whether at a Rule 3:4-3(a) hearing,
Rule 3:4A hearing or otherwise, in order to satisfy the federal
and State constitutions. Our case law, however, implies that,
even when significant liberty interests are at stake, the State
(continued)
[Ibid.]
The committee's recommendation was not adopted, and the Rule,
which has been amended several times since, has remained
essentially unchanged.
16 A-1787-16T6
is not required to produce live witnesses to establish probable
cause.
For example, in In re J.G., 151 N.J. 565, 592 (1997), the
Court held that, before a court can order HIV testing of a
defendant or juvenile pursuant to N.J.S.A. 2C:43-2.2, it must
find probable cause that the victim was exposed to the
assailant's bodily fluids and there was a possibility that the
AIDS virus had been transmitted.8 The Court explained:
Evidence sufficient to support a finding of
probable cause can be gleaned from numerous
sources, including sworn statements of the
victim, the offender, law enforcement
officers or other witnesses, the evidence
presented in seeking an arrest warrant for
the offender, the findings of the judicial
officer who determined that there was
probable cause to issue the arrest warrant,
the evidence presented at a probable cause
hearing held pursuant to Rule 3:4-3,
testimony before the grand jury, the
indictment returned against the offender by
the grand jury, and any evidence presented
at the trial of the offender for the alleged
sexual assault against the victim. We
anticipate that in most cases, an order
requiring testing will issue forthwith upon
an application from the prosecutor on notice
to the offender.
If the evidence is not sufficient, the
court may, in its discretion, hold a hearing
to afford the State the opportunity to
demonstrate that probable cause exists. The
8
Importantly, N.J.S.A. 2C:43-2.2 only requires that the
defendant or juvenile be "charged" with, not convicted of,
specific offenses.
17 A-1787-16T6
hearing should be similar to a preliminary
hearing under Rule 3:4-3 in that both the
offender and the State must be given notice,
the offender may cross-examine witnesses
offered by the State, the rules of evidence
shall not apply, and the offender shall be
entitled to counsel.
[Ibid. (emphasis added) (internal citations
omitted).]
We have held that an initial temporary commitment under the
Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to
-27.38, must be on notice and subject to a judicial finding of
probable cause. In re Commitment of M.G., 331 N.J. Super. 365,
383 (App. Div. 2000). However, particularly since the
commitment was subject to a later hearing, we held that due
process was satisfied by a "probable cause hearing . . . [which]
shall be limited to an inquiry as to whether the documentation
provided to the judge satisfies the statutory requirements for
commitment." Id. at 383-84 (emphasis added).
The Act provides limited guidance regarding the procedures
the court must employ at a pretrial detention hearing. However,
the similarity between the Act's procedures, and those
established in the federal Bail Reform Act of 1984, 18 U.S.C.A.
18 A-1787-16T6
§ 3141 to § 3150 (the Federal Act), suggest the New Jersey
Legislature intended our process to be similar.9
Indeed, the limited legislative history surrounding passage
of the Act supports this conclusion. For example, at the Senate
Law and Public Safety Committee (SLPSC) public hearing regarding
Senate Concurrent Resolution 128 (SCR-128), which "[p]ropose[d]
constitutional amendment to authorize, under certain
circumstances, pre-trial detention of persons in criminal
cases," Senator Donald Norcross, Chair of the SLPSC, noted that
SCR-128 "makes much needed changes to our State's bail system."
Pub. Hearing Before Senate Law and Pub. Safety Comm., Senate
Concurrent Resol. 128, at 1 (July 24, 2014).10 Senator Norcross
stated:
It is time that we give our justice system
the ability to weigh the public risk certain
offenses pose to keep residents safe when
considering bail of dangerous criminals.
More to the point, this measure would bring
New Jersey in line with the Federal courts,
which has allowed [sic] judges this
discretion since 1984.
[Id. at 2 (emphasis added).]
9
We recognize that in this part of the opinion, we deal with
"constitutional adjudication" and not statutory interpretation,
something we discuss more fully below. State v. Pomianek, 221
N.J. 66, 88 n.8 (2015).
10
The hearing transcript may be found at
http://www.njleg.state.nj.us/legislativepub/pubhear/slp07242014.
pdf
19 A-1787-16T6
The Federal Act permits the government to seek pretrial
detention of a defendant arrested for certain enumerated crimes,
or "in a case that involves" either "a serious risk that such
person will flee," or "a serious risk that the person will
obstruct or attempt to obstruct justice, or threaten, injure, or
intimidate, or attempt to threaten, injure, or intimidate, a
prospective witness or juror." 18 U.S.C.A. § 3142(f)(2). A
judicial officer must hold a hearing to determine whether
conditions other than detention "will reasonably assure the
appearance of the person as required and the safety of any other
person and the community." 18 U.S.C.A. § 3142(f). At the
pretrial detention hearing, a defendant has a right to be
represented by counsel and "shall be afforded an opportunity to
testify, to present witnesses, to cross-examine witnesses who
appear at the hearing, and to present information by proffer or
otherwise." Ibid. The rules of evidence do not apply, and
"[t]he hearing may be reopened" prior to trial "if the court
finds that information exists" that "has a material bearing" on
its decision. Ibid. Like the Act, the Federal Act expressly
provides that a defendant may "present information by proffer or
otherwise," but is silent as to whether the government may do
likewise. 18 U.S.C.A. § 3142(f); N.J.S.A. 2A:162-19(e)(1).
20 A-1787-16T6
Both statutes create a rebuttable presumption in favor of
detention for certain enumerated crimes. 18 U.S.C.A.
§ 3142(e)(3); N.J.S.A. 2A:162-19(b). However, the Federal Act
applies this rebuttable presumption to a broader range of crimes
than the Act, including certain serious drug crimes, violent
crimes involving a firearm, and many offenses involving a minor
victim. 18 U.S.C.A. § 3142(e)(3). Also, unlike the Act, the
Federal Act requires the government to establish probable cause
only in those instances when the rebuttable presumption arises.
Ibid.In United States v. Salerno, 481 U.S. 739, 751, 107 S. Ct.
2095, 2103, 95 L. Ed. 2d 697, 711 (1987), the United States
Supreme Court upheld the constitutionality of the Federal Act
and concluded that its procedures did not violate a defendant's
due process rights. The Court noted that the procedural
protections provided "extensive safeguards" that "far exceed
what we found necessary to effect limited postarrest detention
in [Gerstein]." Id. at 752, 107 S. Ct. at 2104, 95 L. Ed. 2d at
712.
In United States v. Gaviria, 828 F.2d 667 (11th Cir. 1987),
the Eleventh Circuit specifically considered whether the Federal
Act allowed the government to proceed by proffer at a pretrial
detention hearing. Id. at 669. The court held that even though
21 A-1787-16T6
the statute was silent on the issue, the government as well as
the defense could proceed by proffer. Ibid. The Gaviria court
noted that the Federal Act's procedural requirements were based
on a District of Columbia statute, which was held to be
constitutional in United States v. Edwards, 430 A.2d 1321 (D.C.
1981) (en banc), cert. denied, 455 U.S. 1022, 102 S. Ct. 1721,
72 L. Ed. 2d 141 (1982). Ibid.The Edwards court noted "the same liberty interest of the
individual — to be free from pretrial detention — is involved in
a pretrial detention hearing and a Gerstein hearing on probable
cause." Edwards, supra, 430 A.2d at 1337. Although "pretrial
detention is not punishment, it clearly implicates a liberty
interest that requires a fair hearing within the mandates of
procedural due process." Id. at 1333-34.
Considering statutory language that, like the Act and the
Federal Act, expressly permitted the defendant "to present
witnesses, to cross-examine witnesses who appear at the hearing,
and to present information by proffer or otherwise," but was
silent as to the nature of the government's evidence, the
Edwards court held that "[t]he information presented to the
judicial officer by either the government or the defense may be
by proffer and 'need not conform to the rules pertaining to the
admissibility of evidence in a court of law.'" Id. at 1334
22 A-1787-16T6
(emphasis added) (quoting D.C. Code 1973, § 23-1322(c)(5)). The
court stated "[t]he legislative history of the statute confirms
Congress' intent that the information upon which the judicial
officer makes his finding need not be sworn testimony, and that
the hearing is not designed to afford defendants a discovery
device." Ibid. (citing H.R. REP. NO. 91-907, 91st Cong., 2d
Sess. 182, 184 (1970)).
Relying on Edwards and the legislative history of the
Federal Act, the Gaviria court held that "the government as well
as the defense may proceed by proffering evidence subject to the
discretion of the judicial officer presiding at the detention
hearing." Gaviria, supra, 828 F.2d at 669. Other circuits
considering the issue have reached the same conclusion. See
United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) ("We
join our sister circuits in holding that the [Federal] Act
allows [the government to proceed by proffer]."); United States
v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986) (noting that
"Congress did not want detention hearings to resemble mini-
trials" and that "the government as well as the defendant should
usually be able to proceed by some type of proffer"); United
States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986) ("As in a
preliminary hearing for probable cause, the government may
proceed in a detention hearing by proffer or hearsay.").
23 A-1787-16T6
Federal district courts considering the issue have also
followed the reasoning in Gaviria and permitted the government
to proceed by proffer. See United States v. Whitman, 514 F.
Supp. 2d 101, 102 n.1 (D. Me. 2007) (rejecting the defendant's
argument that only he had a right to submit evidence at the
detention hearing by proffer); United States v. Cabrera-
Ortigoza, 196 F.R.D. 571, 574 (S.D. Cal. 2000) (noting "there is
no requirement of live testimony by the government at a
detention hearing" and holding that amendments to the federal
rules requiring the production of witness statements "do not
invalidate the use of proffers at a detention hearing"); United
States v. Ward, 63 F. Supp. 2d 1203, 1210 (C.D. Cal. 1999)
(noting that "both the Government and the defendant may proceed
by proffer or hearsay" at a pretrial detention hearing), aff’d,
237 Fed. Appx. 289 (9th Cir. 2007); United States v. Alston, 899
F. Supp. 1, 3 n.3 (D.D.C. 1995) (judicial officer has discretion
to permit the government to proceed by proffer); United States
v. Alonso, 832 F. Supp. 503, 505 (D. Puerto Rico 1993) (same).
As the overwhelming amount of federal precedent
demonstrates, pretrial detention is constitutionally permissible
upon a prompt judicial determination of probable cause as
required by Gerstein. Permitting the government to establish
24 A-1787-16T6
probable cause by proffer and hearsay is consistent with the
Federal Act and does not violate due process.
At oral argument, defendant sought to distinguish these
federal precedents by arguing the Federal Act requires the
government to establish probable cause only in those cases where
a rebuttable presumption of detention arises. 18 U.S.C.A.
3142(e)(3). He asserts that in many of the cited cases, the
government had already indicted the defendant, or the case
involved a crime for which the rebuttable presumption did not
apply, and therefore probable cause was not at issue. In other
words, the courts permitted the government to proceed by proffer
only as to grounds for detention but not as to probable cause.
Defendant cites United States v. Suppa, 799 F.2d 115, 118 (3d
Cir. 1986), in which the court remarked in dicta that it had a
"grave question whether the required finding of probable cause
may be based on a proffer of evidence by the government."
However, in Suppa, the court specifically never reached the
issue, ibid., and we found no other case expressing such
reservations. In United States v. Delker, 757 F.2d 1390, 1396-
98 (3d Cir. 1985), the court expressly rejected the defendant's
argument that "hearsay may not be employed to demonstrate that
appellant committed the crime with which he is charged."
Moreover, in Edwards, the seminal case upon which most of the
25 A-1787-16T6
circuit and district courts rely, the hearing occurred before
indictment, and the defendant was charged with crimes that
required a judicial finding of probable cause. Edwards, supra,
430 A.2d at 1324-25. Yet, the court did not distinguish the
nature of the evidence admitted to prove probable cause from
that admissible to prove other factors supporting detention.
Defendant argues that our courts have cautioned against
reliance on hearsay in other proceedings involving deprivation
of liberty interests, for example, commitment hearings under the
SVPA and probation violation hearings. In re Commitment of
E.S.T., 371 N.J. Super. 562, 575 (App. Div. 2004) (requiring
examining doctors to testify at SVPA commitment hearing if
available); State v. Reyes, 207 N.J. Super. 126, 138-39 (App.
Div.) (permitting use of hearsay at probation revocation hearing
only if "demonstrably reliable"), certif. denied, 103 N.J. 499(1986). Defendant also points out that our Supreme Court is
currently considering whether hearsay testimony alone can
justify the revocation of probation. See State v. Mosely,
Docket No. A-3212-14T4 (Sept. 7, 2016), certif. granted, ___
N.J. ___ (2016).11 Defendant argues that "there is an even
11
Similarly, the ACLU cites our decision in State v. Bacome, 440
N.J. Super. 228, 239 n.7 (App. Div.), certif. granted, 223 N.J.
279 (2015), which raised concerns about the use of hearsay at a
suppression hearing. Since the briefs were filed, the Court
(continued)
26 A-1787-16T6
greater rationale for mandating . . . broader protections at a
hearing where the defendant has yet to be convicted of any
crime."
However, at a pretrial detention hearing, the State is
required to establish probable cause for defendant's arrest on
the charges contained in the complaint-warrant. See State v.
Brown, 205 N.J. 133, 144 (2011) ("[F]or an arrest, 'there must
be probable cause to believe that a crime has been committed and
that the person sought to be arrested committed the offense.'"
(quoting State v. Chippero, 201 N.J. 14, 28 (2009))). "Although
it is difficult to define the concept with precision, probable
cause requires 'more than a mere suspicion of guilt' but less
evidence than is needed to convict at trial." Ibid. (quoting
State v. Basil, 202 N.J. 570, 585 (2009)). Unlike these other
types of hearings cited by defendant, the detention hearing is
not a final adjudication of contested facts and does not
ultimately affect either defendant's trial on the merits or the
punishment resulting if he is found guilty.
One other point convinces us that allowing the State to
proceed by proffer at the detention hearing does not violate
(continued)
reversed our judgment without addressing the issue. State v.
Bacome, ___ N.J. ___ (2017).
27 A-1787-16T6
defendant's due process. Defendant concedes that, had a grand
jury returned an indictment before the hearing, the State would
not have needed to demonstrate probable cause for defendant's
arrest. N.J.S.A. 2A:162-19(e)(2); see also A.D., supra, 212
N.J. at 218 (2012) ("[T]he standard governing a grand jury's
decision whether to indict has also been characterized as one of
probable cause." (citing State v. Hogan, 144 N.J. 216, 227
(1996))). Yet, our courts have long accepted that an indictment
may be returned wholly on hearsay or other testimony that is
neither competent nor legally admissible at trial. State v.
Holsten, 223 N.J. Super. 578, 585 (App. Div. 1988) (citations
omitted).
Moreover, it is beyond peradventure that the grand jury
process accords a defendant none of the procedural safeguards
provided by the Act. See, e.g., State v. Schmidt, 213 N.J.
Super. 576, 584 (App. Div. 1986) (noting the presentation to a
grand jury is not adversarial, and "consideration of the views
of the defense" is not required),12 rev'd on other grounds, 110
N.J. 258 (1988); State v. Hart, 139 N.J. Super. 565, 567-68
(App. Div. 1976) (noting grand jury proceedings are secret, with
the prosecutor in attendance but without defendant or defense
12
Although the prosecutor must present evidence that "directly
negate[s] guilt" or is "clearly exculpatory." Hogan, supra, 144
N.J. at 235-37.
28 A-1787-16T6
counsel present (citing R. 3:6-6(a))). No witness, including a
defendant, has the right to have counsel present in grand jury
proceedings. See In re Essex Cty. Grand Jury Investigation into
Fire at Seton Hall Univ. in S. Orange on Jan. 19, 2000, 368 N.J.
Super. 269, 291 n.9 (Law Div. 2003). In other words, probable
cause may be established and a defendant detained without any of
the procedural safeguards we have described as part of a
detention hearing under the Act. Yet, defendant does not
contend, nor could he, that a judicial determination of probable
cause based on the return of an indictment before the detention
hearing denies him due process.
In sum, we reject the contention that Judge McBride's
decision to detain defendant without the State calling a witness
to present live testimony at the hearing violated his due
process rights.
B.
Defendant also argues that the Act's language evinces the
Legislature's intent to require the State to produce live
testimony at the hearing. He contends "familiar canons of
statutory construction" lead to this conclusion. We disagree.
In construing a statute, our "goal . . . 'is to give effect
to the intent of the Legislature.'" State v. Morrison, ___ N.J.
___, ___ (2016) (slip op. at 22) (quoting Maeker v. Ross, 219
29 A-1787-16T6
N.J. 565, 575 (2014)). We first look at the statute's language,
giving the words their plain meaning and enforcing the statute
as written. State v. Grate, 220 N.J. 317, 330 (2015) (citing
State v. Drury, 190 N.J. 197, 209 (2007)). However,
[i]f the language is ambiguous or "admits to
more than one reasonable interpretation, we
may look to sources outside the language to
ascertain the Legislature's intent." Such
extrinsic sources, in general, may include
the statute's purpose, to the extent that it
is known, and the relevant legislative
history.
[Drury, supra, 190 N.J. at 209 (quoting
State v. Reiner, 180 N.J. 307, 311 (2004)).]
As noted, in several instances, the Federal Act and the Act
are nearly identical. "[W]hen sections of the federal and state
acts are substantially similar in language, it is appropriate to
conclude that our Legislature's 'intent in enacting the sections
of the . . . Act . . . was simply to follow the federal act.'"
State v. Diaz, 308 N.J. Super. 504, 510 (App. Div. 1998)
(quoting State v. Fornino, 223 N.J. Super. 531, 544 (App. Div.),
certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109
S. Ct. 152, 102 L. Ed. 2d 123 (1988)); see also Pub. Hearing
Before Senate Law and Pub. Safety Comm., supra, at 2. Moreover,
the federal precedent we cited above is both instructive and
persuasive. See State v. Ball, 141 N.J. 142, 156 (1995) (noting
that state courts "heed federal legislative history and case law
30 A-1787-16T6
in construing" New Jersey's RICO statute, which was modeled on
the federal RICO statute), cert. denied, 516 U.S. 1075, 116 S.
Ct. 779, 133 L. Ed. 2d 731 (1996).
Initially, defendant contends the State must call a live
witness to establish probable cause but not to establish grounds
for detention.13 Indeed, the express language of the Act
supports the proposition that the State may establish grounds
for detention by documentary proffer alone. For example, the
Legislature specifically required PSP to generate the PSA for
the court's consideration in deciding whether detention was
appropriate. N.J.S.A. 2A:162-25. Rule 3:4A(b)(5) expressly
provides that "[t]he court may consider as prima facie evidence
sufficient to overcome the presumption of release a
recommendation by [PSP] . . . that the defendant's release is
not recommended (i.e., a determination that 'release not
recommended or if released, maximum conditions')." The
Legislature permitted the judge to consider this tool in
evaluating the State's proof as it relates to grounds for
detention. N.J.S.A. 2A:162-20(f).
13
As already noted, amicus ACLU submits live testimony is
necessary to establish both probable cause and at least some of
the statutory factors that might support grounds for detention,
such as, for example, "[t]he nature and circumstances of the
offense charged." N.J.S.A. 2A:162-20(a).
31 A-1787-16T6
Additionally, in reaching a decision on the grounds for
detention, the judge may consider evidence that is assuredly
documentary in nature in most instances, such as a defendant's
criminal history and "record concerning appearance at court
proceedings." N.J.S.A. 2A:162-20(c)(1). That the State may
prove grounds for detention by clear and convincing documentary
evidence alone militates against defendant's claim that the
State may not establish probable cause — requiring a much lesser
burden of proof — without a witness.14
Defendant argues the Act only permits a defendant to
"present information by proffer or otherwise," N.J.S.A. 2A:162-
19(e)(1), implicitly signifying the State may not proceed by
proffer, and had the Legislature intended to permit proof of
probable cause by proffer, it could have explicitly said that.
That reasoning is unpersuasive.
The Act is not only silent as to whether the State may
proceed by proffer, but it is also silent as to whether the
State may call witnesses, cross-examine witnesses, or
"otherwise" present information to the judge, all of which the
Act expressly permits a defendant to do. Ibid. We doubt the
14
Similarly, the Federal Act requires the government to prove
grounds for detention by clear and convincing evidence. 18
U.S.C.A. § 3142(f)(2). As explained, federal precedent clearly
permits the government to proffer evidence to meet this
heightened burden of proof.
32 A-1787-16T6
Legislature's silence regarding the State's method of proving
probable cause necessarily signifies its intention to either
limit the type of evidence the State chooses to introduce, or
require the introduction of certain evidence, i.e., the
testimony of a live witness with knowledge of certain events.
Defendant also argues the Act permits him to "cross-examine
witnesses who appear at the hearing," thereby implicitly
compelling the State to produce a witness. We again disagree.
Clearly, if the State produces a witness, defendant is free to
cross-examine within the bounds set by the judge. However, the
plain language of the Act imposes no such burden on the State.
We hasten to add that at the detention hearing, the judge
may exercise his or her discretion and require additional proof
before reaching a decision, and the judge retains the authority
to insist that the State produce a witness. See, e.g., United
States v. Acevedo-Ramos, 755 F.2d 203, 208 (1st Cir. 1985) ("If
the court is dissatisfied with the nature of the proffer, it can
always, within its discretion, insist on direct testimony."
(quoting Edwards, supra, 430 A.2d at 1334)); United States v.
Sanchez, 457 F. Supp. 2d 90, 93 (D. Mass. 2006) (noting the
magistrate may "require the Government to produce its percipient
witnesses[] in circumstances in which the 'accuracy' of the
hearsay evidence is 'in question'" (quoting Acevedo-Ramos,
33 A-1787-16T6
supra, 755 F.2d at 207)); aff’d, 612 F.3d 1 (1st Cir. 2010),
cert. denied, 562 U.S. 1052, 131 S. Ct. 621, 178 L. Ed. 2d 450(2010); United States v. Hammond, 44 F. Supp. 2d 743, 746-47
(D. Md. 1999) (rejecting the government's proffered evidence and
ordering the production of a witness), rev'd on other grounds,
229 F.3d 1144 (4th Cir. 2000).
In sum, we find no support for defendant's contention that
the Act requires the State to establish probable cause by
producing a witness at the hearing with sufficient personal
knowledge to permit meaningful cross-examination.
C.
Lastly, we address practical considerations that arise if
the State must produce, as defendant urges, a witness with
particularized knowledge at every detention hearing. The Act
requires the detention hearing to take place "no later than the
eligible defendant's first appearance," although the State may
seek a continuance of three days if it has filed a motion
seeking detention. N.J.S.A. 2A:162-19(d)(1). We take judicial
notice of the filing of hundreds of detention motions throughout
the state since January 1, 2017.
Before us, defendant argued that far from serving the
laudable goals of expediency and judicial economy, permitting
the State to proceed by proffer will make "mini-trials" more
34 A-1787-16T6
likely, because defendants will subpoena witnesses or produce
affirmative evidence to contradict the State's proffer,
particularly when the affidavit of probable cause and PLEIR are
extremely terse, as in this case. Rather, we rely upon the
judges conducting these hearings to provide fair, just and
timely determinations, using all the tools at their command.
Then-judge, now Justice, Stephen G. Breyer, writing for the
court of appeals noted that permitting proffers and other
hearsay under the Federal Act "rests primarily upon the need to
make the bail decision quickly, at a time when neither party may
have fully marshalled all the evidence in its favor." Acevedo-
Ramos, supra, 755 F.2d at 206. "Often the opposing parties
simply describe to the judicial officer the nature of their
evidence; they do not actually produce it." Ibid. However,
Judge Breyer noted that the "competing demands of speed and
reliability" may be satisfied through the judge's discretionary
power to "selectively insist[] upon the production of the
underlying evidence or evidentiary sources where their accuracy
is in question." Id. at 207. In that way, the judge can
proceed "without unnecessarily transforming the bail hearing
into a full-fledged trial or defendant's discovery expedition."
Id. at 207-08.
35 A-1787-16T6
Additionally, we note that in light of our decision in
Robinson, supra, ___ N.J. ___ (slip op. at 27), the State must
provide a defendant with materials relating to the "facts on
which the State bases its pretrial detention application." As a
result, defendants will have a significant amount of information
by which to test the probable cause determination, first made at
issuance of the complaint-warrant, and again put to the test at
the pretrial detention hearing.
Finally, recognizing defendant's argument regarding the
paucity of detail in the documents in this particular case, we
caution prosecutors about reliance upon documentary proffers
that provide the thinnest reeds of support for probable cause.
Doing so may inhibit the State's ability to rely solely upon the
proffered evidence at the hearing, thereby leading to the
exercise of the judge's discretion to compel the introduction of
additional evidence or otherwise deny the State's request to
detain.
II.
Defendant contends the State failed to meet its burden of
proof justifying pretrial detention. In a single paragraph,
defendant argues releasing him with "strict conditions,"
including "electronic monitoring," would have satisfied the
goals of the Act, namely, assuring his appearance, protecting
36 A-1787-16T6
the community and preventing him from obstructing justice.
N.J.S.A. 2A:162-15. We disagree.
Although the Act provides for an appeal by right of a
pretrial detention order, N.J.S.A. 2A:162-18(c), it does not
specify the scope of our review. See also United States v.
Perry, 788 F.2d 100, 104 (3d Cir.) (noting the lack of a
standard of review in the Federal Act), cert. denied, 479 U.S.
864, 107 S. Ct. 218, 93 L. Ed. 2d 146 (1986). There is a split
among the federal circuits concerning the proper standard of
review. United States v. O'Brien, 895 F.2d 810, 812 (1st Cir.
1990). Some circuit courts apply de novo review to mixed
questions of law and fact and legal conclusions, but review the
factual findings under a clearly erroneous standard. United
States v. English, 629 F.3d 311, 319 (2d Cir. 2011). Others
reject the clearly erroneous standard for pretrial detention
decisions and require an independent review of the release
order, "giving deference to the determination of the district
court." O'Brien, supra, 895 F.2d at 812-14.
The Attorney General submits an "abuse of discretion"
standard is appropriate; at oral argument before us, defendant
acknowledged that was most likely the appropriate standard of
review. We need not resolve the question, particularly since
neither party briefed the issue. We conclude that whatever
37 A-1787-16T6
standard applies, for all the reasons stated by Judge McBride
and incorporated in his order, the State proved the grounds for
detention in this case by clear and convincing evidence.
Affirmed.
38 A-1787-16T6