VICKI BOCELLE VS. LAUREN K. CALDWELL (FD-01-0150-16, ATLANTIC COUNTY AND STATEWIDE)

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NOT FOR PUBLICATION WITHOUT THE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-2245-16T7
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
HASHEEN SANDERS,
Defendant-Respondent.
_______________________________
Submitted March 7, 2017 – Decided April 12, 2017
Before Judges Fisher and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Complaint No. W-2017-000013-0712.
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for appellant (Kayla
Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant (Tamar Lerer, Assistant Deputy
Public Defender, of counsel and on the
brief).
PER CURIAM
We granted the State's motion for leave to appeal the trial
court's January 31, 2017 order denying the State's motion for
the detention of defendant and imposing conditions for
defendant's pretrial release. We affirm.
Defendant was charged in four complaint-warrants in
connection with four separate incidents that allegedly occurred
on January 11, 2017. He was charged in three of the incidents
with third-degree attempted burglary,1 N.J.S.A. 2C:5-1(a)(1) and
N.J.S.A. 2C:18-2(a)(1). In the fourth incident, defendant was
charged with second-degree burglary, N.J.S.A. 2C:18-2(a)(1), and
third-degree theft, N.J.S.A. 2C:20-3(a).
The State moved for defendant's pretrial detention. At a
January 31, 2017 hearing, the State presented the complaint-
warrants, affidavits of probable cause, preliminary law
enforcement incident reports (PLEIR), and the public safety
assessment (PSA).2
1 The parties and court incorrectly identified the attempted
burglary charges as fourth-degree offenses. An attempted
burglary is of the same degree as the completed crime of
burglary. N.J.S.A. 2C:5-4. Under our criminal code, burglaries
are graded as either second-degree or third-degree offenses.
N.J.S.A. 2C:18-2(b). The complaint-warrants alleging the
attempted burglaries here do not include any facts supporting a
charge of attempted second-degree burglary. See N.J.S.A. 2C:18-
2(b)(1) and (2). There is no basis in the record to conclude the
misconception concerning the degrees of the three attempted
burglaries affected the court's release decision.
2 The nature of these documents and their application in matters
governed by the new Bail Reform Act, N.J.S.A. 2A:162-15 to -26,
which became effective January 1, 2017, are more fully discussed
(continued)
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The judge determined the affidavits established probable
cause for each of the charges. The affidavits showed defendant's
fingerprints were found at the scenes of two of the attempted
burglaries, and a boot print found at the scene of the third
attempted burglary matched the boots worn by defendant at the
time of his arrest. Defendant admitted to the commission of two
of the attempted burglaries, including the one where the boot
print was found. Defendant was also identified by the victim of
the alleged second-degree burglary, and defendant confessed to
committing that burglary as well.
The PSA assigned a score of three for risk of failure to
appear, four for risk of criminal activity, and a flag for an
elevated risk of violence. The PSA included a recommendation
against defendant's pretrial release. Defendant did not dispute
there was probable cause for the charges and acknowledged his
prior criminal record, but argued it had been five years since
his last criminal conviction and that detention was not
necessary to either protect the public or ensure his appearance
at future court proceedings.
(continued)
elsewhere. See State v. Robinson, __ N.J. Super. __ (App. Div.),
leave to appeal granted, __ N.J. __ (2017); State v. Ingram, __
N.J. Super. __ (App. Div.), leave to appeal granted, __ N.J. __
(2017); State v. C.W., __ N.J. Super. __ (App. Div. 2017).
3 A-2245-16T7
The judge noted that the State had "a very strong case" and
explained he was required to "consider a number of different
factors in determining whether or not to detain" defendant. The
court considered defendant's age and criminal history, including
his prior convictions for eluding, multiple aggravated assaults,
possession of a controlled dangerous substance, and a number of
prior failures to appear for court proceedings. The judge
acknowledged defendant was previously sentenced on three
occasions to lengthy prison terms. The judge also considered the
PSA's scoring of the risk factors and its recommendation against
release, which the judge recognized could be utilized to
overcome the presumption of release to which defendant was
otherwise entitled.
The judge found probable cause and concluded that the facts
presented a detention decision that "could go either way," but
was satisfied there were accommodations and conditions that
would ensure defendant's appearance in court and protect the
community.3
3 We reject the State's contention that the judge's rhetorical
statement, "I don't know why but I'm inclined . . . to . . .
keep you under [twenty-four]-hour house arrest," shows the judge
did not have a reasoned basis for his release decision. The
record shows the court reviewed the seriousness of the charges,
defendant's prior criminal history, and the PSA and made a
reasoned determination there were conditions short of detention
(continued)
4 A-2245-16T7
The judge conditioned defendant's release upon his residing with
his niece with twenty-four hour home detention and electronic
monitoring, weekly telephone reporting to pre-trial services,
and bi-weekly personal reporting to pre-trial services.
Defendant was further ordered to avoid all contact with the
victims and to report any change of address to pre-trial
services.
Following the State's filing of the motion for leave to
appeal the court's order, the judge issued a letter opinion
amplifying the reasons for his decision in accordance with Rule
2:5-6(c). The judge explained that he "placed [d]efendant on the
strictest conditions possible, short of detention," that the
electronic monitoring "will pinpoint and provide satellite
coordinates of [defendant's] exact location at all times," and
that "pretrial services will be able to confirm [defendant's]
location at all times." The judge determined the conditions
imposed ensure defendant's appearance at all court proceedings,
the protection of the community, and that defendant will not
obstruct the criminal justice process.
(continued)
that ensured defendant's appearances for court appearances and
protected the public.
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Based on our review of the record, we do not discern any
abuse of the judge's considerable discretion, see C.W., supra,
slip op. at 33-40, by releasing defendant upon the strict and
comprehensive conditions set forth in the court's order, and
determining the State failed to satisfy its "heavy burden [of
establishing] the need for detention by 'clear and convincing
evidence.'" Id. at 38 (quoting N.J.S.A. 2A:162-18(a)(1)).
Affirmed.
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