STATE OF NEW JERSEY VS. C.W. (W-2017-000015-1516, OCEAN COUNTY AND STATEWIDE(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2415-16T7
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
March 21, 2017
v. APPELLATE DIVISION
C.W.,1
Defendant-Respondent.
_____________________________
Argued March 13, 2017 – Decided March 21, 2017
Before Judges Sabatino, Nugent and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. W-
2017-000015-1516.
Samuel J. Marzarella, Chief Appellate
Attorney, argued the cause for appellant
(Joseph D. Coronato, Ocean County
Prosecutor, attorney; Mr. Marzarella, of
counsel; John C. Tassini, Assistant
Prosecutor, on the briefs).
Laura B. Lasota, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Ms. Lasota, of counsel and on the
briefs).
1
We use initials to protect the identity and privacy of the
alleged victim, a minor, who resides in close proximity to
defendant.
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).
Claudia Joy Demitro, Deputy Attorney
General, argued the cause for amicus curiae
Office of Attorney General (Christopher S.
Porrino, Attorney General, attorney; Ms.
Demitro, of counsel and on the briefs).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal by the State from a denial of its motion for
defendant C.W.'s pretrial detention presents several legal
issues arising under the new Bail Reform Act, N.J.S.A. 2A:162-15
to -26 ("the Act"), which became effective on January 1, 2017.
The novel issues posed to us include: (1) the proper
standards of appellate review for assessing a trial court's
decision to detain or release a defendant under the Act; (2) the
analytic impact of a defendant's juvenile record, a facet that
is not numerically reflected in a defendant's risk-assessment
scores; (3) the significance to the detention analysis of a
defendant's tier classification under Megan's Law; and (4)
whether a recommendation by the Judiciary's Pretrial Services
Program to detain a defendant creates, under the recently-
enacted Rule 3:4A(b)(5), a rebuttable presumption against
release that such a defendant must overcome.
2 A-2415-16T7
For the reasons amplified in this opinion, we construe the
Act and the associated provisions within Rule 3:4A as follows.
First, we adopt the agreed-upon position of the parties and
the amici that the scope of appellate review of a detention
decision generally should focus on whether the trial court
abused its discretion, but de novo review applies with respect
to alleged errors or misapplications of law within that court's
analysis.
Second, we conclude that a defendant's prior history of
juvenile delinquency and probation violations is a permissible –
and at times especially significant – consideration in the
detention analysis. Such consideration of a defendant's
juvenile record is authorized by the Act, as it is logically
subsumed within the factors set forth in N.J.S.A. 2A:162-
20(c)(1).
Third, in appropriate cases, a detention analysis under the
Act should afford considerable weight to the tier classification
of a defendant who has previously committed a sexual offense
subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, and whose
dangerousness and risk of re-offending have been evaluated on a
Registrant Risk Assessment Scale ("RRAS"). Such a Megan's Law
tier classification falls within the broad terms of N.J.S.A.
2A:162-20(c)(1). The Megan's Law tiering is particularly
3 A-2415-16T7
salient where a defendant has been classified in "Tier 3"
corresponding to the highest risk of re-offense, and where the
pending charges involve new sexual offenses.
Fourth, we reject the argument that a Pretrial Services
recommendation to detain a defendant creates, under Rule
3:4A(b)(5), a rebuttable presumption against release that a
defendant must overcome. However, as the Rule expressly states,
such a recommendation to detain may be, but is not required to
be, relied upon by the court as "prima facie evidence" to
support detention.
Notably in this regard, the Acting Administrative Director
of the Courts recently announced in a March 2, 2017 guidance
memorandum2 that the standard "two-part" format of
recommendation, which had been used by the Pretrial Services
Program for the most serious cases (and which was used in this
case), is being discontinued. That memorandum further clarified
that the two-part format was not intended by the Judiciary to
convey a recommendation that equally valued the options of (1)
detention or (2) release upon stringent conditions. Instead,
the two-part format was meant to convey that detention was the
2
See Acting Admin. Dir. of the Courts Memorandum, "Criminal
Justice Reform – Amendment of the Decision Making Framework to
Clearly Indicate No Release Recommended for the Highest Level of
Risk Defendant" (March 2, 2017).
4 A-2415-16T7
preferred option, but if the trial court rejected that primary
recommendation, then stringent conditions of release
alternatively should be imposed.
Lacking the guidance of the Administrative Director's
recent clarifying memorandum, as well as subsequent published
case law on legal issues arising under the new statute 3, the
trial court rejected the State's motion to detain C.W. Instead,
the court released him on specified conditions, which it made
more stringent after learning of defendant's close proximity to
the residence of the minor.
The trial court found that the State had not met its burden
for detention under the Act. The court reached that conclusion
in spite of defendant's troubling prior record of sexual
wrongdoing as a juvenile, his two violations of probation that
caused the Family Part to order him confined for three years in
a juvenile detention facility, his highest-level Tier 3
classification under Megan's Law, and his close proximity to the
minor's residence.
3
See State v. Ingram, ___ N.J. Super. ___ (App. Div. 2017)
(generally allowing the State to establish probable cause at the
detention hearing through a written proffer rather than through
testimony); State v. Robinson, ___ N.J. Super. ___ (App. Div.
2017) (clarifying the State's discovery obligations in
connection with the detention proceeding), leave to appeal
granted, ___ N.J. ___ (2017).
5 A-2415-16T7
The trial court appears to have afforded significance to
defendant's low numerical risk-assessment scores on the failure-
to-appear and new criminal activity indices. However, both of
those scores do not take into account the fact that defendant
has been confined in a juvenile facility for several years. In
addition, the trial court's decisions do not explain
specifically why it rejected the portion of the Pretrial
Services recommendation of detention, despite the Act's
requirement for such a written explanation.
We further note that there are material informational gaps
in the existing record, such as the details relating to
defendant's two violations of probation and also his Megan's Law
classification. These gaps impede a full and appropriate
consideration of the issues in this case as well as our own
appellate review.
For these and other reasons explained in this opinion, we
remand this matter to the trial court for expeditious
reconsideration of its ruling.
I.
We derive the pertinent facts, in part, from the State's
allegations, mindful that this case is only in the pretrial
phase. Fundamentally, the State contends that defendant C.W.,
who is presently twenty years old, attempted on two different
6 A-2415-16T7
dates in 2016 to engage in sexual activities with a minor
female. The minor reportedly lives nearby defendant and his
parents in Ocean County.4
The Charged Offenses and the State's Investigation
According to the State, in May 2016, defendant, who was
then age nineteen, approached the minor, who was then eleven
years old.5 He offered to give her a video game system if she
allowed him to touch her and if she would touch his erect penis.
The girl declined defendant's proposal. She ran home and
reported the incident to her brother.
Several months later in November 2016, defendant (who had
turned twenty over the summer) contacted the minor through a
social media message. He asked her to send him photographs of
her wearing a bikini. She did not respond to him.
On November 14, 2016, the minor and her mother reported the
two incidents to the police. Officers from the Special Victims'
Unit of the Ocean County Prosecutor's Office interviewed the
minor on December 1, 2016. The police also took tape-recorded
4
The record supplied to us does not clearly substantiate whether
the minor lives immediately next door to defendant, but it is
uncontested that she resides approximately 100 feet from him.
5
The minor reported that defendant had approached her after she
got off a school bus, whereas defendant stated to the police
that he had approached her outside of his residence. We need
not resolve here this discrepancy about the exact location.
7 A-2415-16T7
statements from the minor's mother and brother, both of whom
provided information consistent with her reported allegations.
Continuing with the investigation, detectives interviewed
defendant at a local police station on January 19, 2017. 6 In a
video-recorded statement, defendant admitted to the detectives
that he had asked the minor for bikini photos. He further
admitted that, on another occasion, after watching pornographic
videos and obtaining an erection, he opened his front door, saw
the minor, and asked her to touch his erect penis.
The police arrested defendant after his interview. In a
complaint-warrant, the State charged him with second-degree
criminal attempt to sexually assault a child of less than
thirteen years of age, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:14-
2(b), as well as third-degree endangering the welfare of a child
by attempting to engage in sexual conduct to impair or debauch
that child's morals, N.J.S.A. 2C:24-4(a)(1).
The Pretrial Services Risk Assessment and Recommendation
Using defendant's fingerprints, the police carried out the
Act's new automated pretrial risk-assessment process, pursuant
to N.J.S.A. 2A:162-25. See N.J. Attorney General Law
6
Defendant does not allege in this interlocutory appeal that his
admissions were coerced or that the police failed to warn him of
his right to remain silent in compliance with Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
8 A-2415-16T7
Enforcement Directive No. 2016-6 ("Directive No. 2016-6"), at
15-16 (Oct. 11, 2016) (detailing the process). The automated
process gathers information about defendants from various law
enforcement and Judiciary databases, including the State Police
criminal case history system, the PROMIS/GAVEL criminal
database, the MACS municipal court database, and other sources.
The information derived from these sources is used to address
the following nine risk factors:
(1) defendant's age at current arrest;
(2) current violent offense, or current
violent offense by a defendant twenty years
old or younger;
(3) pending charge(s) at the time of arrest;
(4) prior misdemeanor7 convictions;
(5) prior felony convictions or any prior
convictions (misdemeanor or felony);
(6) prior violent convictions;
(7) prior failures to appear in the past two
years;
(8) prior failures to appear older than two
years; and
7
The risk assessment tool has been developed for the Judiciary
by a private foundation. Variations of the tool have been used
in other jurisdictions, some of which, unlike New Jersey, use
the categorical terms "felony" and "misdemeanor." See Laura &
John Arnold Foundation, PSA Risk Factors and Formula, 2 (2012)
http://www.arnoldfoundation.org/wp-content/uploads/PSA-Risk-
Factors-and-Formula.pdf.
9 A-2415-16T7
(9) prior sentences leading to
incarceration.
Notably, the automated process does not account for a
defendant's juvenile history. Hence, the numerical scores it
generates do not reflect adjudications of delinquency for
serious violent crimes, juvenile violations of probation, or
failures of a juvenile to appear at proceedings. Directive No.
2016-6, supra, at 29-30.8
Using an algorithm, the automated process generates a
Public Safety Assessment ("PSA"), i.e., a risk profile designed
to inform the trial court of the likelihood, on a scale of one
to six, that defendant, if released before trial, would engage
in a New Criminal Activity ("NCA") or Fail to Appear ("FTA") at
future court events. Id. at 27. The PSA has also been designed
to include a "flag" if there is a statistical likelihood that
the defendant would engage in a New Violent Criminal Activity
("NVCA"). Ibid.
A defendant's NCA and FTA scores are then factored into the
Judiciary's approved Decision-Making Framework ("DMF"). The DMF
8
The automated process also does not account for: (1) facts
pertaining to the present offense indicating that a defendant is
especially dangerous; (2) the strength of the State's case; (3)
pending charges or convictions from another state; or (4) a
defendant's involvement with a violent street gang or organized
crime, drug dependence, or mental illness. See Directive No.
2016-6, supra, at 28-29.
10 A-2415-16T7
attempts to identify the recommended level and type of
conditions and intervention or monitoring services needed to
manage the risks posed by defendant if he were released.9
At the time of C.W.'s detention hearing, and prior to the
Acting Administrative Director's March 2, 2017 clarifying
memorandum, the six possible DMF recommendations were: (1)
release on own recognizance ("ROR"); (2) release with pretrial
monitoring level ("PML") 1; (3) PML 2; (4) PML 3; (5) PML 3 +
EM/HD (Electronic Monitoring/Home Detention); or (6) Release Not
Recommended. The "Release Not Recommended" category also
contained the wording, "If Released, PML3 + EM/HD."10
Here, the one-page Pretrial Services report reflected that
defendant was twenty years old, and was charged with a violent
offense. It further indicated that he had no pending charge at
the time of his arrest; no prior indictable or disorderly
persons adult convictions; no prior violent adult convictions;
9
Other considerations within the DMF include: (1) the presence
or absence of an NVCA flag; (2) whether any of the current
offenses were violent; (3) whether defendant was currently
charged with escape, murder, sexual assault, robbery, or
carjacking; and (4) whether the currently charged offenses
exposed defendant to parole ineligibility under the No Early
Release Act, N.J.S.A. 2C:43-7.2 ("NERA").
10
According to the March 2, 2017 clarifying memorandum, the DMF
and resulting Pretrial Services recommendation will now simply
read "No release recommended" for the highest-risk defendants.
"Amendment of the Decision Making Framework", supra.
11 A-2415-16T7
no prior failure to appear pretrial; and no prior sentence
leading to incarceration.
Based on this information, defendant was rated by Pretrial
Services with a FTA score of one, (i.e., the lowest possible
risk for failing to appear), and an NCA score of two, (i.e., the
next lowest possible risk for engaging in new criminal
activity). Defendant was not "flagged" for new violent criminal
activity.
Notwithstanding defendant's low FTA and NCA scores, the
recommendation Pretrial Services presented to the trial court
was "Release Not Recommended. If Released, Weekly Reporting +
HD/EM." The document contained no elaboration on how that
recommendation was generated.11
11
Instructional slides created by the developers of the PSA
tool, which have been supplied to us by amicus American Civil
Liberties Union ("the ACLU") counsel without objection, indicate
that the DMF process should determine whether a defendant's
pending charges involve certain offenses "in which the majority
of the time a recommendation of preventative detention would be
appropriate regardless of the risk assessment results." Those
offenses are escape, murder, aggravated manslaughter,
manslaughter, aggravated sexual assault, sexual assault,
robbery, or carjacking. The slides also call for a similar
recommendation if the PSA resulted in an NVCA flag and one of
the current offenses is violent.
Defense counsel and the ACLU argue that these categories, which
would include defendant because of the charge of attempted
sexual assault, routinely produce an "automatic" and computer-
generated Pretrial Services recommendation for detention. We do
not have enough information in this record to evaluate whether
(continued)
12 A-2415-16T7
As the Prosecutor and the Attorney General stress,
defendant has a significant prior juvenile record that was not
taken into account numerically in his PSA. Specifically, in
August 2010, he was adjudicated delinquent for acts that if
committed by an adult would constitute second-degree attempted
sexual assault and third-degree endangering the welfare of a
child, acts which he committed in July 2009. Other charges
were dismissed. He was initially ordered to serve three years
of probation, and directed to register as a sex offender under
Megan's Law. The record does not provide any further details
concerning these prior offenses.
Thereafter, defendant was charged with violating probation
on two occasions, once in December 2012 and again in February
2013. The record on this appeal does not disclose the nature of
those separate violations, which were concurrently adjudicated
in the Family Part. However, they apparently were sufficiently
serious to cause the court to sentence him in April 2013 to
three years of confinement at the New Jersey Training School, an
(continued)
that characterization is correct, and neither the Prosecutor nor
the Deputy Attorney General at oral argument knew if it were
true. In any event, that particular nuance of the DMF process
need not be ascertained or evaluated in this opinion, although
counsel are free to develop the record on the subject on remand
if they so choose.
13 A-2415-16T7
all-male juvenile detention center in Jamesburg. The exact date
of his release is not documented in this record.
Defendant's history also reflected that, at some point
after he was adjudicated delinquent, he underwent an evaluation
for Megan's Law purposes because of the sexual nature of his
juvenile offenses. He was classified as a Tier 3 offender, the
highest tier, corresponding to a "great risk of re-offending,"
as opposed to a low or moderate risk (Tiers 1 and 2). See
Attorney General Guidelines for Law Enforcement for the
Implementation of Sex Offender Registration and Community
Notification Laws 17 (Feb. 2007).12
The State's Motion for Pretrial Detention
After defendant was arrested and charged with the present
offenses concerning the minor, the State timely moved for his
pretrial detention under the new law. The pretrial detention
hearing was held in the Criminal Part on January 25, 2017.
12
Pursuant to N.J.R.E. 201, we take judicial notice that
defendant, represented by an assistant public defender, appealed
his tier classification in Docket No. A-4495-15. The appeal was
opposed by an assistant prosecutor. Neither the assistant
public defender nor the assistant prosecutor are counsel
involved in the present pretrial detention appeal. A different
panel of this court issued an order on December 9, 2016,
affirming in part the trial court's June 21, 2016 tier
classification as to certain criteria, but remanding for the
reconsideration of other criteria. Given the sealed nature of
that separate classification matter, we do not discuss here its
substantive content.
14 A-2415-16T7
Defendant appeared at the hearing with counsel, and two
assistant prosecutors appeared for the State.13 No witnesses
testified.
The Prosecutor asserted at the detention hearing that the
State was seeking the detention of defendant because he had been
charged with a second-degree offense to which NERA was
applicable; was believed to be a Tier 3 Megan's Law registrant14
who had violated a condition of his release; and otherwise
presented a danger to the community. The Prosecutor argued that
probable cause had been established, referencing the facts
reported to the police as set forth in a supporting affidavit.
The Prosecutor further emphasized that, during an interview with
police, defendant had admitted to soliciting the minor for
bikini photographs through social media and asking her to touch
his erect penis.
Defense counsel argued at the hearing that probable cause
had not been demonstrated. He contended that a proffer by an
affidavit was not sufficient and that the State had to present
13
For ease of discussion, we refer collectively to the two
assistant prosecutors as "the Prosecutor."
14
Neither the Prosecutor nor defense counsel brought to the
trial court's attention at the detention hearing that the Tier 3
classification had been appealed and remanded.
15 A-2415-16T7
live witnesses.15 He also contended that the State had
improperly failed to provide the defense with all discovery in
its possession, including the recorded statements made by the
minor, witnesses, and defendant.16
The trial court was persuaded that the State should have
provided the defense with the requested discovery, and stated it
was willing to grant an adjournment to allow for that turnover.
However, defense counsel declined an adjournment, as he did not
want to delay matters and have defendant remain in jail for that
reason. Accordingly, the court ruled that probable cause had
been preliminarily established for purposes of the detention
hearing, but indicated it would consider defendant's assertions
of alleged deficiencies in the State's presentation in its final
decision.
Following the court's probable cause ruling, the Prosecutor
announced that the State was relying on defendant's PSA and
criminal case history in support of its motion for detention.
15
This categorical legal argument was subsequently rejected in
Ingram, supra, ___ N.J. Super. ___ (slip op. at 34).
16
The following month in Robinson, supra, ___ N.J. Super. ___
(slip op. at 27), we clarified the State's discovery obligations
in relation to the detention hearing. The Supreme Court has
granted the State's motion for leave to appeal in Robinson, and
the case is awaiting argument before the Court.
16 A-2415-16T7
She urged that defendant should not be released under any
circumstances.
Although the Prosecutor recognized that defendant had low
scores on the PSA, she asserted "this [was] one of the occasions
where the PSA simply [did] not account for the defendant's
[offense] history and/or the serious nature of the crime." She
noted that while defendant has not had the opportunity to amass
an adult criminal record, he does have a significant juvenile
record. In fact, she asserted he committed as a youth sexual
wrongdoing allegedly similar to the current charges. She also
emphasized defendant's probationary sentence, his previous
designation as a Tier 3 Megan's Law offender, his subsequent
violations of probation, and his ultimate commitment to three
years in juvenile detention. Based upon his history, the
Prosecutor maintained that there was a high risk that defendant
would not comply with release conditions and would, once again,
re-offend.
Defense counsel responded that the PSA, on which defendant
had received very low scores, was a reliable "sanitized
assessment" of his actual history. Counsel acknowledged, as an
aside and without any further comment, that defendant did have
"one juvenile conviction [sic]" that was not accounted for by
the PSA scores.
17 A-2415-16T7
Defense counsel further argued that his client not only
must be presumed innocent, but also should be given the
opportunity under the new Act to show the court that he could
comply with release conditions while his charges were pending.
Counsel maintained that defendant was not a flight risk because
he had been residing with his parents "for many years now" in
Ocean County, had a girlfriend who was three months pregnant,
and was about to start a job at a local restaurant.
With respect to conditions of release, defense counsel
asserted that defendant was willing to stay away from the minor,
her residence, and school, and also would remain in contact with
counsel and Pretrial Services. He represented that defendant
was presently on medication, receiving counseling, and being
monitored by his parole officer.
The Trial Court's Rulings
After considering these arguments and the written
materials, the trial court issued an oral ruling at the end of
the hearing, denying the State's motion for detention and
instead releasing defendant on several conditions.
Among other things, the court observed in its oral decision
that defendant has "roots in the community," "prospects of
employment," and "ties . . . to [the] area." The court further
noted that defendant had "no failure to appear in the past two
18 A-2415-16T7
years," and "no prior sentence" for an adult crime. The court
also recognized that defendant is "presumed innocent until
proven guilty," and that he had not been charged with murder or
another offense that would make him presumptively inappropriate
for release under the new statutory scheme.
The trial court did briefly acknowledge that defendant had
a prior juvenile delinquency adjudication for second-degree
sexual assault, had been classified under a Tier 3 pursuant to
Megan's Law, and had apparently "re-offended quickly after he
was released." Nevertheless, the court concluded that the State
had not met its burden by clear and convincing evidence under
the statute to show that no combination of conditions could
reasonably assure defendant's appearance in court and the
protection and safety of the community before trial.
The court denied the State's immediate motion for a stay
for purposes of an emergent appeal. The court then agreed,
without defense objection, to impose all of the conditions the
Prosecutor had requested if release were granted. These
conditions required defendant to: (1) avoid all contact with
the minor and her family; (2) appear for all scheduled court
proceedings; (3) immediately notify Pretrial Services of any
change of address, telephone number, or other contact
information; (4) avoid the commission of any new offenses; (5)
19 A-2415-16T7
report to Pretrial Services telephonically once every other
week, and in person once every other week; (6) remain on home
detention, with electronic monitoring; and (7) comply with his
Megan's Law obligations.
Defendant agreed to abide by these conditions, but inquired
if he was still allowed to go to work. Without waiving its
right to pursue the present appeal, the Prosecutor did not
object to defendant working, provided that he adhere to a strict
schedule and return home after work immediately. It was also
agreed that defendant had to stay at least 500 feet away from
the minor's home.
After dismissing the parties, the court reconvened the
proceeding later that same day, upon learning that the minor
actually lived within 100 feet of defendant's home, and also
that defendant would likely come into contact with minors if he
were to work at the local restaurant. Given this additional
information, the court modified its original ruling. It
determined that, because defendant and the child apparently were
neighbors, he would have to remain inside his home at all times,
except to go to work or to appointments with the advance
permission of Pretrial Services. The court further directed
that defendant would have to find employment at a different
20 A-2415-16T7
location where he would not be likely to come into contact with
minors.
The court issued an order implementing those terms that
same afternoon. The order did not elaborate further on the
court's reasons, but instead cross-referenced the bench ruling.
Hours later, the State filed an application with this court for
permission to file an emergent motion for leave to appeal. We
denied the emergent motion, without prejudice to the State's
right to file a motion for relief in the regular course. The
Supreme Court likewise denied emergent relief.
The State promptly moved for leave to appeal on January 31,
2017. The same day, we issued a sua sponte interim order,
directing the trial court to furnish, as mandated by N.J.S.A.
2A:162-23(a)(2), a written statement of reasons for denying
detention contrary to the Pretrial Services recommendation.
The trial court submitted the written statement of reasons
on February 2, 2017. In that amplification, the trial court
first noted the parties' discovery dispute and the alleged
deficiencies in the State's probable cause presentation. It
then summarized the parties' arguments in support of and against
pretrial detention. The court repeated its conclusion that,
after considering all of the arguments and proofs, the State had
not established its burden to justify detention by clear and
21 A-2415-16T7
convincing evidence. The statement of reasons did not refer to
the Pretrial Services recommendation, but it did again reference
defendant's low PSA scores.
We then granted the State's motion for leave to appeal.
Meanwhile, at our invitation, the Attorney General and the ACLU
each moved for and were granted leave to appear as amicus
curiae.
On appeal, the Prosecutor and the Attorney General urge
that we reverse the trial court's denial of the State's
detention motion. They argue that the trial court abused its
discretion by overlooking or under-valuing important aspects of
this case, including, among other things, defendant's juvenile
history as a sex offender, his violations of probation, his tier
classification under Megan's Law, his very close proximity to
the minor's residence, and the Pretrial Services recommendation
to detain.
Defendant and amicus ACLU argue that the trial court's
decision was reasonable, supported by the record, and consistent
with the terms and objectives of the new law, and should not be
disturbed.
II.
Before delving into the legal issues raised by this appeal,
we begin with a brief overview of the key elements of the Act
22 A-2415-16T7
and the associated Rule 3:4A, the latter which was approved in
August 2016 and became effective with the new statute on January
1, 2017.
The Act signals a momentous change in our State's criminal
justice system. As our colleagues extensively detailed in
Robinson, supra, ___ N.J. Super. ___ (slip op. at 8-10), the Act
is the result of a constitutional mandate by New Jersey voters
to replace the former bail-dependent system with a system
providing defendants with "a right to pretrial release, but
authorizing pretrial detention under certain limited
circumstances." See N.J. Const. art. I, ¶ 11. The Act also
imposes certain speedy trial requirements. See N.J.S.A. 2A:162-
22.
"As codified by the Bail Reform Act, the new system favors
pretrial release and monitoring as the presumptive approach and
limits preventive detention to defendants who actually warrant
it." Robinson, supra, ___ N.J. Super. ___ (slip op. at 8). "By
permitting judges to keep high-risk defendants detained without
bail, and to release with or without conditions those defendants
who pose little risk of flight or of committing another offense,
these constitutional and legislative changes represent a major
reform to criminal justice that will promote public safety and
fairness." Ibid.
23 A-2415-16T7
Nonetheless, the trial court remains authorized, upon
motion of a prosecutor, to order pretrial detention of a
particular defendant when it finds by "clear and convincing
evidence, that no condition or combination of conditions can
reasonably assure the effectuation of these goals." N.J.S.A.
2A:162-15; accord N.J.S.A. 2A:162-18(a)(1); N.J.S.A. 2A:162-
19(e)(3).
The State may file an application for pretrial detention
when a defendant is charged with, among other things: (1) any
crime of the first or second degree enumerated under NERA17; or
(2) any crime enumerated under N.J.S.A. 2C:7-2(b)(2) (Megan's
Law) or the crime of endangering the welfare of a child under
N.J.S.A. 2C:24-4. See N.J.S.A. 2A:162-19(a)(1) and (4). Under
this same statutory section, the State may also move for
pretrial detention when a defendant is charged with any other
crime for which the prosecutor believes there is a serious risk
that the goals set forth in N.J.S.A. 2A:162-15 cannot be met.
N.J.S.A. 2A:162-19(a)(7).
At the detention hearing required by N.J.S.A. 2A:162-19(c),
if the defendant has not yet been indicted, "the prosecutor
shall [first] establish probable cause that the eligible
17
It is undisputed that defendant, who is charged with a second-
degree offense, meets this predicate requirement.
24 A-2415-16T7
defendant committed the predicate offense." N.J.S.A. 2A:162-
19(e)(2). Probable cause consists of a "well grounded"
suspicion that an offense has been committed. State v.
Sullivan, 169 N.J. 204, 211 (2001). See also Ingram, supra, ___
N.J. Super. ____ (slip op. at 8-9).
Except for when an eligible defendant is charged with a
crime set forth in N.J.S.A. 2A:162-19(b), i.e., murder or any
crime for which the defendant would be subject to an ordinary or
extended term of life imprisonment, the statute imposes a
rebuttable presumption against detention. N.J.S.A. 2A:162-
18(b).18 Hence, in order to prevail on a detention motion in
other offense categories, the State must rebut the presumption
that some amount of monetary bail, non-monetary conditions, or a
combination thereof would reasonably assure (1) the defendant's
appearance in court when required, (2) the protection of the
safety of any other person or the community, and (3) that the
defendant will not obstruct or attempt to obstruct the criminal
justice process. N.J.S.A. 2A:162-18(b).
18
In these other instances, there is a rebuttable presumption
that the eligible defendant "shall be detained." N.J.S.A.
2A:162-19(b) (emphasis added). The defendant can rebut this
presumption by the lesser proof standard of preponderance of the
evidence. N.J.S.A. 2A:162-19(e)(2). Under this same statutory
provision, if the defendant successfully rebuts the presumption,
the prosecutor can still establish grounds for detention by
clear and convincing evidence. Ibid.
25 A-2415-16T7
The Act further prescribes that the court at a detention
hearing "may take into account" the following information:
a. The nature and circumstances of the
offense charged;
b. The weight of the evidence against the
[presumptively] eligible defendant, except
that the court may consider the
admissibility of any evidence sought to be
excluded;
c. The history and characteristics of the
eligible defendant, including:
(1) the eligible defendant's character,
physical and mental condition, family ties,
employment, financial resources, length of
residence in the community, community ties,
past conduct, history relating to drug or
alcohol abuse, criminal history, and record
concerning appearance at court proceedings;
and
(2) whether, at the time of the current
offense or arrest, the eligible defendant
was on probation, parole, or on other
release pending trial, sentencing, appeal,
or completion of sentence for an offense
under federal law, or the law of this or any
other state;
d. The nature and seriousness of the danger
to any other person or the community that
would be posed by the eligible defendant's
release, if applicable;
e. The nature and seriousness of the risk of
obstructing or attempting to obstruct the
criminal justice process that would be posed
by the eligible defendant's release, if
applicable; and
f. The release recommendation of the
pretrial services program obtained using a
26 A-2415-16T7
risk assessment instrument under N.J.S.A.
2A:162-25.
[N.J.S.A. 2A:162-20.]
Notably, although Section 20 of the Act does not place any
special emphasis on the PSA, another provision within the Act,
N.J.S.A. 2A:162-16(b)(1), expressly mandates the court "shall
consider the [Pretrial Services] risk assessment and
recommendations on conditions of release before making any
pretrial release decision[.]" (Emphasis added).
We agree with the State that this quoted language within
Section 16 signifies that a trial court may not ignore the
Pretrial Services recommendation in its detention analysis,
although it is not bound to follow it. That interpretation is
consistent with Section 23(a)'s requirement that, if the court
issues an order contrary to the recommendations of Pretrial
Services, the judge "shall provide an explanation in the
document that authorizes the eligible defendant's release."
N.J.S.A. 2A:162-23(a)(2) (emphasis added). As we discuss,
infra, that did not occur here, perhaps due to perceived
ambiguities in the two-part format of the recommendation.
New Rule 3:4A(b)(5), which implements these statutory
facets, instructs that the court:
may consider as prima facie evidence
sufficient to overcome the presumption of
release a recommendation by [Pretrial
27 A-2415-16T7
Services] established pursuant to N.J.S.A.
2A:162-25 that the defendant's release is
not recommended (i.e., a determination that
"release not recommended or if released,
maximum conditions"). Although such
recommendation by [Pretrial Services] may
constitute sufficient evidence upon which
the court may order pretrial detention,
nothing herein shall preclude the court from
considering other relevant information [in
reaching its detention determination].
[(Emphasis added).]
"After considering all the circumstances, the [Pretrial
Services] risk assessment and recommendations on conditions of
release, and any information that may be provided by a
prosecutor or the eligible defendant, the court shall order that
the eligible defendant" be either detained or released.
N.J.S.A. 2A:162-16(b)(2). A defendant may be released on: (1)
his or her own recognizance; (2) execution of an unsecured
appearance bond; (3) non-monetary conditions; (4) monetary bail;
or (5) a combination of conditions and monetary bail. N.J.S.A.
2A:162-16(b)(2); N.J.S.A. 2A:162-17. Monetary bail can only be
used to reasonably assure the eligible defendant's appearance.
N.J.S.A. 2A:162-17(c)(1).19
19
The court-ordered non-monetary conditions, paraphrased, may
require the defendant to: (1) refrain from committing any
offense during the period of release; (2) avoid all contact with
an alleged victim of the crime; (3) avoid all contact with all
witnesses who may testify concerning the offense; (4) remain in
the custody of a designated person, who agrees to assume
(continued)
28 A-2415-16T7
With this backdrop in mind, we turn to the discrete issues
presented.
A.
Our first task is to ascertain the appropriate scope of
appellate review of a trial court's order granting or denying
pretrial detention. The Act does not specify a scope of review.
Nor have our two published cases resolved it while examining
other important legal issues under the new law. But see Ingram,
supra, ___ N.J. Super. ___ (slip op. at 37-38) (noting that the
Attorney General had posited an abuse-of-discretion review
(continued)
supervision and to report any violation of a release condition
to the court; (5) maintain employment, or, if unemployed,
actively seek employment; (6) maintain or begin an educational
program; (7) abide by specified restrictions on personal
associations, place of residence, or travel; (8) report on a
regular basis to a designated law enforcement agency, or other
agency, or pretrial services program; (9) comply with a
specified curfew; (10) refrain from possessing a firearm,
destructive device, or other dangerous weapon; (11) refrain from
excessive use of alcohol, or any use of a narcotic drug or other
controlled substance without a prescription by a licensed
medical practitioner; (12) undergo all available medical,
psychological, or psychiatric treatment, including treatment for
drug or alcohol dependency, and remain in a specified
institution if required for that purpose; (13) return to custody
for specified hours following release for employment, schooling,
or other limited purposes; (14) be placed in a pretrial home
supervision capacity with or without the use of an approved
electronic monitoring device; or (15) satisfy any other
condition deemed necessary to reasonably assure the effectuation
of the goals of the Act. N.J.S.A. 2A:162-17(b)(1) and (2).
29 A-2415-16T7
standard, and that the Public Defender had indicated at oral
argument that such a standard "most likely" applied).
Our task has been eased because the parties and the amici
essentially agree that the appropriate general standard of
appellate review is to sustain the trial court's decision unless
it represents an abuse of discretion. However, as the parties
also agree, de novo review must be conducted if the trial court
erred in its application of the law, such as by relying on a
legally impermissible reason, by failing to consider a legally
required factor in the detention calculus, or by failing to
provide adequate reasons for its decision.
Even though we accept counsel's agreement that these are
the appropriate review standards for appeals arising under the
Act, we provide the following discussion for sake of
completeness. We begin with a recognition that the statute
explicitly confers upon defendants a right to appeal an order of
pretrial detention "pursuant to the Rules of Court." N.J.S.A.
2A:162-18(c).20 The appeal "shall be heard in an expedited
manner." Ibid. In addition, the defendant who was denied
release by the trial court "shall be detained pending the
disposition of the appeal." Ibid.
20
See R. 2:9-13 (eff. Jan. 1, 2017) (delineating new rules of
appellate practice specifically to guide detention appeals).
30 A-2415-16T7
Although the State has no reciprocal statutory right to
appeal decisions granting a defendant's pretrial release, it can
pursue interlocutory review in this court's discretion. The
State may do so through a motion for leave to appeal filed in
accordance with the general requirements of Rules 2:2-3 and 2:5-
6. Indeed, that is the jurisdictional path that led to the
present case being heard by this court, having granted leave to
appeal.
None of the parties or amici support adopting the standards
of review that case law from the circuit courts has deemed
applicable under the federal Bail Reform Act, 18 U.S.C.A. §§
3141 to 3156 (1984), on which the Act was largely based. Like
our own law, the federal statute does not identify the
applicable standard of review. United States v. Perry, 788 F.2d
100, 104 (3d Cir.), cert. denied, 479 U.S. 864, 107 S. Ct. 218,
93 L. Ed. 2d 146 (1986). The circuit courts have been split in
resolving that question.
Three circuit courts have adopted a "clearly erroneous"
standard, i.e., a highly deferential standard much like a
traditional abuse of discretion standard, whereby the detention
order will be sustained if it is supported by the evidence
presented at the hearing. See, e.g., United States v. English,
629 F.3d 311, 319 (2d Cir. 2011); United States v. Rueben, 974
31 A-2415-16T7
F.2d 580, 586 (5th Cir. 1992), cert. denied, 507 U.S. 940, 113
S. Ct. 1336, 122 L. Ed. 2d 720 (1993); United States v. Fortna,
769 F.2d 243, 250 (5th Cir. 1985); United States v. Chimurenga,
760 F.2d 400, 405-06 (2d Cir. 1985); United States v. Williams,
753 F.2d 329, 333 (4th Cir. 1985).
A majority of the circuit courts, however, independently
review detention decisions affording more limited deference to
the district court's ruling. United States v. O’Brien, 895 F.2d
810, 813 (1st Cir. 1990). Under this more stringent standard,
"[i]f upon careful review of all the facts and the trial judge's
reasons the appeals court concludes that a different result
should have been reached, the detention decision may be amended
or reversed." Id. at 814.
Meanwhile, six circuit courts adhering to the "independent"
standard of review specify that factual findings will only be
reversed if they are clearly erroneous. United States v.
Cisneros, 328 F.3d 610, 613 (10th Cir. 2003); United States v.
Portes, 786 F.2d 758, 762 (7th Cir. 1985); United States v.
Hurtado, 779 F.2d 1467, 1470-72 (11th Cir. 1985); United States
v. Maull, 773 F.2d 1479, 1487 (8th Cir. 1985); United State v.
Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985); United States v.
Hazime, 762 F.2d 34, 37 (6th Cir. 1985).
32 A-2415-16T7
Two other circuits generally hold that the district court's
determination should simply be given deference. United States
v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003); O'Brien,
supra, 895 F.2d at 814; United States v. Delker, 757 F.2d 1390,
1399-1400 (3d Cir. 1985). However, as explained in O’Brien,
supra, 895 F.2d at 813, as a practical matter, this general
deference "to the determination of the trial court in the
context of an independent review typically will mean giving the
greatest deference to purely factual determinations."
The parties and amici in this case eschew these varying
federal approaches. They instead urge that we apply traditional
standards of review that have been used in appeals of bail
decisions in our State.
Historically, the purpose of bail was not to protect the
community from a defendant's future criminal or antisocial
conduct or to inflict punishment, but instead merely to ensure
the defendant's appearance at court proceedings. State v.
Korecky, 169 N.J. 364, 376 (2001); State v. Steele, 430 N.J.
Super. 24, 35-37 (App. Div. 2013), certif. improvidently
granted, 223 N.J. 284 (2014). The setting of bail has been
entrusted to the reasonable and sound discretion of the trial
court, and our appellate courts have generally sustained those
rulings in the absence of a proven abuse of discretion. See,
33 A-2415-16T7
e.g., State v. Fajardo-Santos, 199 N.J. 520, 533-34 (2009);
Korecky, supra, 169 N.J. at 373; Steele, supra, 430 N.J. Super.
at 34-35. The trial court's discretionary decision to impose
non-monetary conditions of release upon a defendant to protect
the public also has been customarily reviewed for an abuse of
that discretion. See, e.g., State v. Johnson, 61 N.J. 351, 364
(1972); Steele, supra, 430 N.J. Super. at 34.
While the concept is difficult to define with precision, an
appellate court "may find an abuse of discretion when a decision
'rest[s] on an impermissible basis' or was 'based upon a
consideration of irrelevant or inappropriate factors.'" Steele,
supra, 430 N.J. Super. at 34-35 (quoting Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)). An appellate court can
also discern an abuse of discretion when the trial court fails
to take into consideration all relevant factors and when its
decision reflects a clear error in judgment. State v. Baynes,
148 N.J. 434, 444 (1997). Likewise, when the trial court
renders a decision based upon a misconception of the law, that
decision is not entitled to any particular deference and
consequently will be reviewed de novo. See, e.g., State v.
Stein, 225 N.J. 582, 593 (2016); State v. Williams, 441 N.J.
Super. 266, 272 (App. Div. 2015).
34 A-2415-16T7
A reviewing court generally will give no deference to a
trial court decision that fails to "provide factual
underpinnings and legal bases supporting [its] exercise of
judicial discretion." Clark v. Clark, 429 N.J. Super. 61, 72
(App. Div. 2012). If a trial court has merely catalogued the
evidence and issued an order without sufficiently explaining its
reasoning, such a conclusory approach does not serve the parties
and does not facilitate appellate review. It is vital that the
trial court make the necessary findings and explain its reasons.
See generally, R. 1:7-4; see also Barr v. Barr, 418 N.J. Super.
18, 46 (App. Div. 2011); Barnett & Herenchak, Inc. v. State, 276
N.J. Super. 465, 472 (App. Div. 1994); In re Valley Hosp., 240
N.J. Super. 301, 306 (App. Div. 1990), certif. denied, 126 N.J.
318 (1991).
We concur with counsel that these well-established general
principles of appellate review are sensibly applied in the
context of pretrial detention rulings issued under the Act. The
statutory scheme envisions that judges in the Criminal Part
repeatedly will be called upon to make detention decisions in a
wide array of cases. Over time, those trial judges will
naturally develop considerable expertise in applying the terms
of the Act. As the First Circuit observed in O'Brien, supra,
895 F.2d at 813, "it would unduly intrude on the ability of
35 A-2415-16T7
[trial] courts to render these [pretrial detention] decisions on
a day to day basis if they were subjected to cavalier treatment
by an appellate court with little experience or opportunity to
develop expertise."
The wording of the Act itself lends support to the adoption
of an abuse of discretion review standard. Section 18 states
that the court "may" order release if the State has met its
burden. N.J.S.A. 2A:162-18(a). Furthermore, Section 20
outlines the factors that the trial court "may" consider in
ruling on detention motions. N.J.S.A. 2A:162-20. "The use of
the word 'may' generally conveys that an action is permissive,
not mandatory." Myers v. Ocean City Zoning Bd., 439 N.J. Super.
96, 101 (App. Div. 2015) (citing Harvey v. Bd. of Chosen
Freeholders of Essex Cty., 30 N.J. 381, 391 (1959) (stating
that, absent legislative intent to the contrary, use of "may"
indicates that a provision is permissive, and use of "shall" or
"must" reflects that a provision is mandatory)).
From a policy perspective, the objectives of the new Act in
attaining the expeditious resolution of criminal cases could be
thwarted if this court routinely second-guessed decisions on
pretrial detention motions simply because we personally would
have reached a different result than the trial judge. We surely
do not wish to encourage dissatisfied parties to file appeals
36 A-2415-16T7
having little or no merit on such collateral issues, while the
trial court proceedings are possibly stalled in the meantime and
the parties' resources are diverted to appellate briefing.
Excessive appeals are also bound to interfere with the Act's
speedy trial goals.
That said, we also must remain vigilant that detention
rulings are not simply rubber-stamped, and that the procedural
and substantive requirements of the Act and other legal
principles are honored. In many instances, the pretrial hearing
may entail no witness testimony and no need for credibility
findings by the trial court, to which we ordinarily accord great
deference. State v. Locurto, 157 N.J. 463, 471 (1999). Hence,
we often will be looking at precisely the same paper record
concerning a defendant's risks as the trial court. Even so, our
primary role in appellate correction should be one of assuring
that the law is being followed properly in the trial court. The
traditional standards of review used by our courts in bail cases
will serve that goal.
When conducting appellate review under this largely
deferential standard, we also must bear in mind the evidentiary
standard under the Act that governs the detention ruling.
Where, as here, the charged offenses do not trigger a
presumption of detention pursuant to N.J.S.A. 2A:162-19(b) — as
37 A-2415-16T7
it would in murder and life imprisonment cases — the State must
meet a heavy burden to establish the need for detention by
"clear and convincing evidence." N.J.S.A. 2A:162-18(a)(1). The
drafters of the Act presumably chose that high bar to make
detention the appropriate result for only a limited group of the
most serious cases, where public safety is demonstrably
threatened by a defendant's release, the defendant clearly is
not likely to appear for court, or he or she is likely to
threaten to obstruct the criminal justice process.
The State's burden of establishing clear and convincing
evidence in this context falls somewhere between the ordinary
civil standard of preponderance of the evidence and the criminal
standard of beyond a reasonable doubt. In re Perskie, 207 N.J.
275, 289 (2011). This heightened standard is typically applied
where the evidentiary matters are complex, prone to abuse, error
or injustice, and also where an individual’s interests in
liberty or personal welfare are at stake. Liberty Mut. Ins. Co.
v. Land, 186 N.J. 163, 170 (2006); State v. Michaels, 136 N.J.
299, 321-23 (1994). The standard is also frequently imposed
where, by operation of common or statutory law, a strong
presumption favors a contrary result. See Auge v. N.J. Dept. of
Corr., 327 N.J. Super. 256, 263 (App. Div.), certif. denied, 164
N.J. 559 (2000).
38 A-2415-16T7
Clear and convincing evidence should produce in the mind of
the decision-maker "a firm belief or conviction as to the truth
of the allegations sought to be established." State v.
Hernandez, 170 N.J. 106, 127 (2001) (quoting In re Samay, 166
N.J. 25, 30 (2001)); State v. Hodge, 95 N.J. 369, 376 (1984).
The evidence must be "so clear, direct and weighty and
convincing as to enable either a judge or jury to come to a
clear conviction, without hesitancy, of the precise facts in
issue." In re Seaman, 133 N.J. 67, 74 (1993) (quoting Aiello v.
Knoll Gold Club, 64 N.J. Super. 156, 162 (App. Div. 1960));
accord Hernandez, supra, 170 N.J. at 127. To meet this test,
the truth of an allegation must be "highly probable." Perskie,
supra, 207 N.J. at 290.
Consequently, in exercising our role of appellate
oversight, we are obligated to bear in mind the challenging
burden under the Act that the State must meet in most cases to
support its detention motion. If the points in favor of the
detention motion do not heavily weigh in favor of the State in
such instances, the trial court should deny the application, and
we should be loath to disturb that denial on appeal.
Conversely, if the State manifestly has made such a showing, we
must carefully consider whether the trial court has abused its
39 A-2415-16T7
discretion or misapplied the law in rejecting the application
and, if so, set aside the determination.
B.
We next consider the legal significance of a defendant's
prior juvenile record in making a detention decision under the
Act. This likewise is an issue on which counsel fundamentally
agree.
As we have noted, the Pretrial Services matrix for the NCA
and FTA scores does not statistically incorporate a defendant's
prior juvenile record. Nevertheless, Section 20 of the Act
broadly authorizes the trial court to consider a defendant's
"past conduct" as one of the many permissible factors in
evaluating his or her suitability for pretrial release.
N.J.S.A. 2A:162-20(c)(1).
A defendant's prior adjudications of delinquency and the
nature of his or her juvenile offenses are logically part of his
or her "history and characteristics" and indicative of the
danger he or she poses to the community under N.J.S.A. 2A:162-
20(c) and (d). Notably, juvenile history is taken into account
in federal detention determinations, where the court is
directed, under 18 U.S.C.A. § 3142(g), to consider the same
types of information set forth in N.J.S.A. 2A:162-20. See,
40 A-2415-16T7
e.g., United States v. Begay, 315 Fed. Appx. 53, 54-56 (10th
Cir. 2009).
We appreciate that the objectives of the juvenile justice
system generally differ from those for the adult criminal
justice process. See, e.g., In re Registrant J.G., 169 N.J.
304, 325 (2001) (emphasizing the Juvenile Code's preference for
"supervision, care and rehabilitation" as alternatives, instead
of incarceration for juveniles adjudicated delinquent); State ex
rel. S.S., 367 N.J. Super. 400, 407 (App. Div. 2004), aff'd 183
N.J. 20 (2005) ("Even with respect to a juvenile charged with
conduct that would be a crime if committed by an adult, the
overriding goal of the juvenile justice system is
rehabilitation, not punishment.").
Nevertheless, an adult defendant's prior juvenile record
may properly be considered in making sentencing determinations,
particularly if the juvenile adjudications are relatively
recent, voluminous, or severe. See, e.g., State v. Torres, 313
N.J. Super. 129, 162 (App. Div.) (instructing that a sentencing
court may consider defendant's juvenile record, even if the
charges did not result in adjudications), certif. denied, 156
N.J. 425 (1998); State v. Phillips, 176 N.J. Super. 495, 502
(App. Div. 1980) (holding that a sentencing judge may consider
juvenile offenses "so long as they are not given the weight of a
41 A-2415-16T7
criminal conviction") (citing State v. Marzlof, 79 N.J. 167,
176-77 (1979)).
Simply stated, a defendant's juvenile offenses may count in
the detention calculus, but should not be weighed as heavily as
prior adult convictions. None of the parties before us dispute
this principle.
C.
We next consider the relevance of a defendant's prior tier
classification as a sex offender under Megan's Law. As part of
the Megan's Law assessment for such potential registrants, the
State is obligated to demonstrate the propriety of defendant's
tier classification by clear and convincing evidence. In re
Registrant M.F., 169 N.J. 45, 54 (2001).
The RRAS was developed by a committee of mental health
experts and members of the law enforcement community convened by
the Attorney General. See In re Registrant of C.A., 146 N.J.
71, 82 (1996); In re Registrant V.L., 441 N.J. Super. 425, 428-
32 (App. Div. 2015). The RRAS was created in response to the
Legislature's directive in Megan's Law for the Attorney General
to promulgate guidelines and procedures for notification of a
sex offender's whereabouts, depending upon the offender's degree
of risk of re-offense. N.J.S.A. 2C:7-8; V.L., supra, 441 N.J.
Super. at 428-29. The RRAS is divided into four categories
42 A-2415-16T7
corresponding to the individual's seriousness of offense,
offense history, personal characteristics, and community
support. Id. at 429. Each category contains at least two of a
total of thirteen criteria, and each such criterion is assigned
a score corresponding to a low, moderate, or high risk
assessment. Ibid. The factors are then all assigned weights
with a multiplier, producing an overall score that numerically
classifies the offender in either Tier 1 (low risk of re-
offense), Tier 2 (moderate risk of re-offense), or Tier 3 (high
risk of re-offense). Ibid. The scoring is to be conducted in
accordance with Guidelines issued by the Attorney General, id.
at 426, and a Registrant Risk Assessment Manual, id. at 429.
Placement in Tier 3 under Megan's Law means that a
defendant has been found by clear and convincing evidence to be
in "the highest risk [of re-offense] category for sexual
offenders[,] requiring Internet registration and the most
comprehensive degree of community notification." Riley v. N.J.
State Parole Bd., 219 N.J. 270, 276 (2014); M.F., supra, 169
N.J. at 52-54.
Here, when defendant was designated as a Tier 3 Megan's Law
offender, he presumably underwent a comprehensive evaluation in
43 A-2415-16T7
order to determine the likelihood that he would re-offend.21 The
precise nature of his original offenses would have been
considered. Many aspects of his life and character would have
been assessed. Another trial judge conducted a hearing on that
classification, at which defendant presumably had the right to
counsel.
It is obvious that an assessment conducted pursuant to
Megan's Law tier review comprises a material, although not
dispositive, source of information for a trial court when
conducting a detention hearing. The tier classification
logically falls within the broad ambit of N.J.S.A. 2A:162-
20(c)(1), which authorizes the pretrial detention judge to
consider a defendant's "character," "physical and mental
condition," "past conduct," and other personal history and
characteristics.
In fact, many of the risk-related considerations within the
Megan's Law assessment topically correspond to those at issue
under the Act, in gauging a defendant's likelihood of re-
offending while on release. The Megan's Law tier classification
should be particularly instructive where, as here, the defendant
is charged with new sexual offenses.
21
As we have noted, we do not know the current status of
defendant's tier classification in the wake of the December 2016
remand.
44 A-2415-16T7
D.
The final legal issue before us is whether, as the
Prosecutor argued in his initial brief, a Pretrial Services
recommendation to detain a defendant creates, under Rule
3:4A(b)(5), a rebuttable presumption against release that a
defendant must overcome. At oral argument on the appeal, the
Prosecutor withdrew this particular argument.
To aid the trial bench and bar, we should nevertheless
point out that, as the Rule expressly states, a Pretrial
Services recommendation to detain a defendant may be, but is not
required to be, relied upon by the court as "prima facie
evidence" to support detention. R. 3:4A(b)(5). Again, the use
of the term "may" within the provision signals discretion.
Harvey, supra, 30 N.J. at 391. The court may require a
prosecutor to rely upon more than the PSA and the recommendation
to carry its burden. Cf. Ingram, ___ N.J. Super. ___ (slip op.
at 33) (analogously noting the court's discretion to require a
prosecutor to provide a more expansive proffer to establish
probable cause).
III.
Having addressed these various general points of law
implicated by the new Act, we finally turn to the trial court's
rulings in this case. We approach our review acutely cognizant
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that the court's rulings were issued in the first month of the
new Act's implementation. That was before any published case
law construing the Act had emerged and while prosecutors,
defense lawyers, and court personnel were all adjusting to the
many operational challenges presented by the new statute.
Indeed, much of the trial court's oral and written analysis
focused on discovery and proffer issues that had yet to be
addressed in a published opinion, until this court's respective
February 2017 decisions in Robinson and Ingram.
With that context and timing in mind, and affording all due
deference to the trial court's zone of discretion, we have
several reservations about the court's reasoning, as well as the
sufficiency of the record.
Despite the temporary remand, the trial court did not
explain in writing specifically why it deviated from the portion
of the Pretrial Services recommendation advising against
defendant's release. As we have already noted, such a written
explanation is required by the Act in N.J.S.A. 2A:162-23(a)(2).
We suspect that this critical omission may have been caused by
the somewhat confusing two-part format of the PSA, which the
Judiciary has now corrected prospectively since March 2. It is
conceivable that the trial court may have perceived that the
second part of the Pretrial Services recommendation stating, "If
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released, weekly reporting + HD/EM," meant that detention and
release on conditions were equally recommended for C.W. As the
Acting Administrative Director's March 2 memo clarified, such
equivalency was not intended under the prior format.
We recognize the public defender and the ACLU have argued
that a Pretrial Services recommendation to detain is automatic,
or at least virtually automatic, for any defendant charged with
a sexual assault. Even if the recommendation to detain in such
cases is, in fact, an automatic, computer-generated certainty in
sexual assault cases, the statute nevertheless obligates the
trial court to provide written reasons explaining why it is
departing from that recommendation, whatever its genesis. That
unfortunately was not done here.
The trial court did mention in its rulings the two low
scores in defendant's PSA for FTA and NCA, and the absence of a
violence flag. We cannot tell, however, how much weight the
court actually placed on those low numbers. The numbers are not
particularly informative here since they do not reflect
defendant's juvenile history, and since he would presumably not
have skipped a court appearance while he was confined for
several years at Jamesburg.
We are also concerned about the trial court's abbreviated
passing references to defendant's juvenile record and his
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classification under Megan's Law. The court did mention the
existence of those things in its oral ruling, but did not
explain why they did not make a difference to the outcome.
The present record on these points is also deficient to
afford meaningful consideration. We do not know what conduct
was involved in defendant's two violations of probation in 2012
and 2013. Apparently, he was not charged with additional
substantive offenses stemming from those incidents, but that
does not necessarily mean that they were minor or did not
correlate in some way to defendant's past wrongful behavior.
Similarly, there is no information in this record about the
timing, details, underlying rationale, or current status of the
tier classification under Megan's Law.
As an additional concern, we lack confidence that in
denying detention the trial court sufficiently took into account
several points stressed by the State, including defendant's
alleged commission of a new sexual offense after his discharge
from Jamesburg, the close proximity of the minor's residence
(which only seemed to come into play in phase two of the January
25 hearing with respect to modifying the conditions of release),
and overall public safety considerations.
The Prosecutor and the Attorney General urge that we
reverse the trial court's ruling and issue our own order
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mandating detention. Conversely, defense counsel and the ACLU
submit that we affirm the trial court's ruling as is, although
they candidly acknowledge certain shortcomings in the record and
the court's analysis. They also maintain that the statute only
permits the State or a defendant to reopen a detention hearing
with material information that was "not known" to that party at
the time of the original hearing. N.J.S.A. 2A:162-19(f).
We adopt neither advocated course of action. Instead, we
remand the matter for reconsideration by the trial court, which
will now have the benefit of the new case law, as well as the
March 2, 2017 guidance memorandum and this opinion. The parties
and the court shall develop or clarify the record further, as
may be feasible and fair under the circumstances.
In issuing this remand, we do not encourage prosecutors in
the future to make "bare-bones" presentations at detention
hearings with an expectation that they will automatically
receive a second chance at amplifying their contentions if they
do not prevail. Nor do we invite defense counsel or trial
judges, despite the busy and rapid-paced nature of this docket,
to cut corners unduly. Nevertheless, as our system adapts to
the new law, a remand in this case is a fair and instructive
outcome.
49 A-2415-16T7
In the meantime, the stringent conditions of defendant's
release set forth in the trial court's January 25, 2017 order
shall remain in place, unless and until the trial court issues a
superseding order. The aggrieved party on the outcome of
reconsideration may seek review in a new appeal or motion for
leave to appeal. We do not retain jurisdiction.
Remanded for further consideration by the trial court,
consistent with this opinion.
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