STATE OF NEW JERSEY VS. J.A.R.R. (2019-000467-0806, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0101-19T6
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
J.A.R.R.,
Defendant-Respondent.
_____________________________
Argued November 12, 2019 – Decided December 11, 2019
Before Judges Ostrer, Vernoia and Susswein.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Gloucester
County, Complaint No. W-2019-000467-0806.
Jonathan E. W. Grekstas, Assistant Prosecutor, argued
the cause for appellant (Charles A. Fiore, Gloucester
County Prosecutor, attorney; Jonathan E. W. Grekstas,
on the briefs).
Patricia B. Quelch argued the cause for respondent
(Helmer, Conley & Kasselman, PA, attorneys; Patricia
B. Quelch, of counsel and on the brief).
PER CURIAM
On leave granted, the State appeals from the trial court's July 18, 2019
order, entered after an earlier remand, denying the State's motion to detain
defendant J.A.R.R. pretrial. Defendant is charged in a complaint-warrant with
two counts of first-degree aggravated sexual assault of a minor under thirteen,
N.J.S.A. 2C:14-2(a)(1), and one count of second-degree endangering the welfare
of a child by engaging in sexual conduct with the child, N.J.S.A. 2C:24-4(a)(1).
The State contends the court erred by relying on evidence of the child's s exual
conduct, in violation of the Rape Shield Law, N.J.S.A. 2C:14-7. We affirm.
If true, the crime is a heinous one. Defendant is charged with assaulting
his own daughter, then twelve-plus years old. The child first reported the assault
to her mother. The child said that on one occasion about one year earlier, her
father forcibly committed an act of cunnilingus on her, and digitally penetrated
her vagina. She reported that while he was under the influence of alcohol or
drugs, he entered her bedroom in the evening, and held her to the bed. She said
he also exposed his penis. At the time, and until the report, she resided with her
father and his girlfriend.
The State sought defendant's detention under the Criminal Justice Reform
Act, N.J.S.A. 2A:162-15 to 26. Although defendant enjoys a presumption of
innocence, see e.g., State v. Johnson, 61 N.J. 351, 360 (1972), he may be denied
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pretrial release if, upon the State's motion, the court finds that no amount of
monetary bail, non-monetary conditions, or combination of the two would
reasonably assure: (1) his appearance in court when required; (2) the protection
of the safety of any other person or the community; and (3) he will not obstruct
or attempt to obstruct the criminal justice process. N.J.S.A. 2A:162-18(a)(1);
see also N.J. Const., art. I, ¶ 11. As defendant was charged with a crime that
carries a potential life sentence, see N.J.S.A. 2C:14-2(a), the prerequisites for
detention are presumed, although he may rebut that presumption. N.J.S.A.
2A:162-19(b)(2). If he does so, by a preponderance of the evidence, N.J.S.A.
2A:162-19(e)(2), then the State must establish a prerequisite of detention by
clear and convincing evidence to block defendant's release, N.J.S.A. 2A:162-
19(e)(3).
In the initial detention hearing, the judge orally found that defendant
failed to rebut the presumption. Pretrial Services, in its Public Safety
Assessment (PSA), recommended that defendant be detained, noting his
exposure to a life sentence. The PSA cited an "elevated risk of violence" under
its "New Violent Criminal Activity Flag," although it scored defendant 2 out of
6 on the "New Criminal Activity" and "Failure to Appear" scales. The court
ordered defendant detained pretrial. In its written decision, which N.J.S.A.
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2A:162-21(a)(1) requires, the court stated that defendant had rebutted the
presumption, but the State proved all three detention prerequisites by clear and
convincing evidence.
We remanded for amplified findings and a statement of reasons. In
particular, since the court referenced the child's statement in connection with the
"weight of the evidence" factor, see N.J.S.A. 2A:162-20(b), we held that the
court was obliged to consider defendant's proffer that his daughter was
motivated to fabricate. We also noted that the court did not clearly explain the
basis for finding, in the written detention order, that defendant posed a risk of
flight and a threat to the criminal justice process.
On remand, the court clarified that, contrary to its written decision, it
initially found that defendant had failed to rebut the presumption of detention.
However, upon reconsideration, the court found that defendant had overcome
that threshold, and the State failed to meet its responding burden. Although the
court's subsequent written findings and statement of reasons were sparse, the
court amplified its reasoning in a written opinion.
The court gave significant weight to the State's proffer of the child's
complaint. However, the court also gave moderate weight to the defense's
proffer that the child had a motive to fabricate, which affected the strength of
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the State's case, and in turn affected the safety-to-persons-and-the-community
factor.1 The court noted that the defense proffered that four witnesses (all
related in some way to defendant) were present in court and prepared to testify
the child had a reputation for untruthfulness. The defense also contended that
the child's mother wanted the child to live with defendant, because the mother
feared the child would falsely accuse her step-father of molestation. The court
noted that the child reported the incident after she "got into trouble in school."
The defense asserted that defendant was the child's "only source of discipline,"
and he forbade her to have a boyfriend. The defense argued that the child
complained to avoid discipline, and to move to a less restrictive home.
Particularly pertinent to the State's appeal, the court also noted the
defense's contention that the child's sexual conduct – including sexting and other
sexual activity with her boyfriend – prompted defendant's discipline. The court
also acknowledged the defense's argument that the child's alleged sexual activity
was relevant "as evidence of her alternative source of sexual knowledge."
However, the court declined to reach the question whether such evidence would
1
See State v. Carroll, 456 N.J. Super. 520, 523 (App. Div. 2018) (stating that
"if the weight of the evidence is weak, then a court may conclude it is less likely
a defendant actually committed the offense," and "[t]hat would allow a court to
conclude it less likely that the defendant would, if released, pose a danger to the
community").
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be admissible at trial under the Rape Shield Law. The court noted that Rule
3:4A(b)(2) states that "[t]he rules governing admissibility of evidence in
criminal trials shall not apply to the presentation and consideration of
information at the [detention] hearing."
The court found that defendant posed a "very low risk of failure to
appear." The court noted: the Public Safety Assessment (PSA) scored him 2 out
of 6 for that risk; defendant "challenge[d] . . . the weight of the State's case"; he
denied the child's allegations and asserted he was anxious to defend himself in
court; he had not failed to appear in court before; and he had significant ties to
the community.
The court also found little threat to the criminal justice process. The court
noted that defendant scored 2 out of 6 for risk of new criminal activity, and his
last contact with the criminal justice system was in 2006 for a disorderly persons
offense. The court found "no other evidence" that defendant would obstruct the
criminal justice process.
The court ordered defendant released on pretrial monitoring level III,
requiring, among other things, that he not contact the child or create a hostile
environment for her, and he report weekly to Pretrial Services.
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The State's principal point on appeal is that that the trial court erred by
considering "evidence of specific instances of sexual conduct" that is irrelevant
under the Rape Shield Law. The State acknowledged at oral argument on appeal
that defendant had obeyed the conditions of release during the months since the
trial court's order on remand. In light of that, the State conceded that detention
was unlikely, even if we remanded again as the State requested for the trial court
to revisit the State's detention motion without reference to the child's alleged
sexual conduct. The State argues we should address the law's applicability to
detention hearings, even if it would not affect the result in this case, because the
issue may recur. However, the State presented no compelling proof that the
issue has arisen repeatedly.
We decline the State's invitation to chart boundaries of territory where we
need not tread.2 We are convinced that the references to the child's alleged
sexual conduct were not essential to the court's decision, and another remand
would not change the result.
2
We also reject the State's argument that the trial court exceeded the scope of
our remand, by reconsidering, instead of providing additional reasons for, its
initial decision. The detention order was interlocutory, and subject to the court's
reconsideration. See State v. Hyppolite, 236 N.J. 154, 171 (2018) (stating that
"[j]udges retain discretion to decide whether to reopen a detention hearing").
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Under the circumstances presented here, the court appropriately
considered that the proffered evidence of the child's alleged sexual conduct
might not be admissible at trial under the Rape Shield Law. See N.J.S.A.
2A:162-20(b) (stating that, in taking account of the weight of the evidence
against the defendant, "the court may consider the admissibility of any evidence
sought to be excluded"). 3 Notably, the trial judge first identified the issue when
the defense made its proffer at the initial hearing, without objection from the
State. As in State v. J.A.C., even absent detail, the defense presented a motive
to fabricate. 210 N.J. 281 (2012). Here, it was based on the proffer that the
child had run afoul of school and parental authority; her father disciplined her,
in particular, by forbidding her to have a boyfriend; and her complaint was
motivated by a desire to avoid the father's discipline and secure an alternative
residence.
Putting aside the issue of the Rape Shield Law, we discern no abuse of
discretion in the decision to release defendant. See State v. S.N., 231 N.J. 497,
515 (2018) (establishing standard of appellate review). The trial court, in its
written amplification, adequately set forth the basis for its decision. See
3
We understand that this provision may, more typically, come into play when
a defendant contends the weight of the evidence against him or her includes fruit
of an illegal interrogation or search and seizure.
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N.J.S.A. 2A:162-21. The court considered "[t]he nature and circumstances" of
the charged offenses, "the weight of the evidence," and "[t]he history and
characteristics of the eligible defendant," including his family and community
ties, past criminal history, and record of appearing in court. The court
considered defendant's PSA scores. See N.J.S.A. 2A:162-16(b)(2).
Relevant to the safety-of-persons-and-the-community factor, the State
presented no evidence that defendant repeated, or tried to repeat, his alleged
criminal conduct in the year since the alleged assault. On the appeal, the State
concedes it has no such evidence in the several months since his release. The
State also presented no evidence that defendant expressly threatened or took any
affirmative steps to intimidate the child or discourage her from disclosing the
alleged assault. We recognize that intimidation may be subtle or implicit.
However, since his release, the State conceded it had no evidence defendant had
attempted, directly or indirectly, to contact or intimidate the child. These factors
all tend to support the trial court's conclusion that release, subject to the
conditions imposed, would reasonably assure that defendant does not obstruct
the criminal justice process. Finally, the court concluded, in light of defendant's
community ties, his intent to fight the charges, and the PSA score, that
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conditional release would reasonably assure defendant's appearance in court
when required.
Affirmed.
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