STATE OF NEW JERSEY VS. MARKELL B. PIERRE (W-2019-002789-2004, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0634-19T6
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MARKELL B. PIERRE,
Defendant-Respondent.
_________________________
Argued February 11, 2020 – Decided March 2, 2020
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Complaint No. W-2019-
002789-2004.
Michele C. Buckley, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for appellant (Lyndsay V. Ruotolo, Acting Union
County Prosecutor, attorney; Michele C. Buckley, of
counsel and on the brief).
Lucy Gray-Stack, Designated Counsel, argued the
cause for respondent (Joseph E. Krakora, Public
Defender, attorney; Lucy Gray-Stack, on the brief).
PER CURIAM
At the conclusion of a pretrial detention hearing, the trial judge found the
State failed to demonstrate probable cause because a video, which captured
some of the moments before and about the time of defendant's arrest, convinced
her that the arresting officer's affidavit was untrustworthy. Consequently, the
judge both denied the State's motion to detain and dismissed the charges without
prejudice. We vacate the dismissal order and remand for further proceedings
because the State was not permitted to present any arguments about the
admissibility or significance of the video.
Defendant was arrested on September 19, 2019, and charged with
disorderly-persons resisting arrest, N.J.S.A. 2C:29-2(a)(1), and fourth-degree
criminal mischief, N.J.S.A. 2C:17-3(a)(1). The next day, the State moved for
pretrial detention.
To establish probable cause at the detention hearing, the State relied only
on the affidavit of Detective A. Gonzalez, who recounted that he and other
members of the narcotics bureau were operating in a particular area near
Jefferson Park in Elizabeth when they determined to arrest S.D. According to
Gonzalez, two other individuals – defendant and Valentino Pierre – "began to
approach" the officers arresting S.D., and as defendant and Valentino Pierre
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approached my partners, I attempted to grab hold of
[defendant's] arm while advising him that he was being
placed under arrest. [Defendant] responded by taking
the cellphone from Valentino's hand and attempting to
pull away from me. I then proceeded to take [defendant]
down to the ground with a leg sweep to effectuate the
arrest. [Defendant] then attempted to push off the
ground to avoid being placed in handcuffs, at which
time, I applied a compliance hold while retrieving my
handcuffs from my belt. I was able to keep [defendant]
down on the ground and subsequently placed him under
arrest.
Gonzalez also claimed that while escorting defendant to a patrol vehicle, he
"attempted to pull away from me in a possible attempt to flee," and that, "[w]hile
attempting to gain full control" of defendant, "both he and I slammed into [a]
patrol vehicle . . . causing a large dent to the rear passenger side door." Once
inside the vehicle, according to Gonzalez, defendant "continued his erratic
behavior by yelling profanities and repeatedly kicking the interior plastic
paneling of the vehicle's door causing additional dents." This affidavit was all
that the State provided to the court to demonstrate probable cause.
In response, defendant provided a video captured by a mobile phone. The
video was viewed in chambers by the judge in the presence of all counsel, but it
was never admitted in evidence. Nor was the video played in open court;
instead, the judge described on the record what the video depicted. At our
request, the State provided a copy of the video, which we have reviewed.
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According to the judge, the video showed Valentino Pierre and defendant
walking in Jefferson Park, down a path, to get a better
view of [S.D.'s] arrest. They stay[ed] on the far side of
the path away from the arresting officers as they filmed.
At one point you hear a man's voice, presumably one of
the Pierre brothers due to its proximity, say to others in
the park, "get off the sidewalk, get off the sidewalk so
they don't say we on the sidewalk."
According to the judge, as the video recording continued capturing S.D.'s arrest,
"you hear a man's voice coming from a distance and to the left of the video
saying, 'you want to record me?'" With that the camera "pan[ned] left" and the
video "show[ed] Det. Gonzalez, dressed in plain clothes, walking quickly
toward the brothers, while grabbing his handcuffs from his belt holster, and
again saying 'you want to record me?'" The judge then describes the remainder
of the recording as evidencing "an immediate tussle to the ground" and
"someone say[ing] 'save my phone,'" followed by "a guttural thumping noise"
before the video ends.
In comparing all this material, the judge concluded that Gonzalez's
affidavit contained contradictions, misstatements and omissions:
To begin, it is clear that defendant's arrest was sparked
by the videoing of [S.D.'s] arrest, and not "the duo"
approaching the officers, as alleged in the affidavit.
This court also finds that the detective, already having
retrieved the handcuffs with his left hand, immediately
grabbed defendant and took him to the ground. At no
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time prior to or during the grabbing and take down of
defendant, did Det. Gonzalez advise defendant that he
was under arrest, as set forth in the affidavit. The video
also contradicts the affiant's explanation of need for the
"compliance hold while retrieving my handcuffs from
my belt," since we know the handcuffs are in Det.
Gonzale[z]'s hand before the take down.
Quoting Franks v. Delaware, 438 U.S. 154, 168 (1978), the judge held that the
probable cause requirement "would be reduced to a nullity if a police officer
was able to use deliberately falsified allegations." The judge found that the
affidavit's "misstatements and omissions" were material and were made either
intentionally or with reckless disregard for the truth. She determined that the
affidavit was untrustworthy and, therefore, concluded the State failed to
establish probable cause. With that determination, the judge entered orders that
both denied detention and dismissed the charges without prejudice.
The State moved for leave to appeal and filed a notice of appeal. Finding
finality had been achieved, we dismissed the motion for leave to appeal as moot
and accelerated the State's appeal of both the order denying detention and the
order dismissing the charges without prejudice. Our disposition of this appeal
in both respects requires that we focus on the judge's finding that probable cause
was absent.
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The Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, declares that
"in a pretrial detention proceeding for which there is no indictment" – as here –
"the prosecution shall establish probable cause that the eligible defendant
committed the predicate offense." N.J.S.A. 2A:162-19(e)(2). What constitutes
probable cause remains the same regardless of the setting in which that question
arises. State v. Ingram, 230 N.J. 190, 206 (2017).
At the detention hearing, the State offered Gonzalez's affidavit to
demonstrate probable cause for the charges and for defendant's detention. The
defense responded with a video. After considering these materials, the judge
found an absence of probable cause to either extend the restraint on defendant's
liberty or for the charges. If that was all there was for us to consider, we would
defer to the judge's weighing of the parties' submissions, even though we too
can read the affidavit and watch the video. See State v. S.S., 229 N.J. 360, 379
(2017) (holding that "a standard of deference to a trial court's factfindings, even
factfindings based solely on video or documentary evidence, best advances the
interests of justice in a judicial system that assigns different roles to trial courts
and appellate courts").
But the record also reveals that the trial judge may have foreclosed the
prosecutor from responding to what the video revealed or to provide other
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evidence in response. After the judge read into the record Gonzalez's affidavit,
she then asked the assistant prosecutor to "enlighten me on that [for] probable
cause purposes," and the following then occurred:
[THE ASSISTANT PROSECUTOR]: Your Honor, the
– the charges in this matter are based on the detective's
observations and – and direct involvement, exchange
with the – with the defendant. The video we watched
does not show the full sequence of events nor does it
really show the detective's –
THE COURT: Counsel, I'm sorry, I – I'm going to stop
you. Because I understand your position and I don't
want to interrupt you and – but I'm going to for
everybody's sake.
The judge then explained why she found the affidavit untrustworthy in light of
what the video showed. 1
After the judge explained her ruling, the assistant prosecutor explained
that it was his "first time seeing" the video 2 and began to request a copy when
he was again interrupted:
1
The judge later amplified her oral decision with a written decision from which
we quoted earlier in this opinion.
2
As noted, the video was played in the judge's chambers in the presence of
counsel. We recognize that detention hearings are abbreviated matters at which
the rules of evidence are not strictly controlling, but we do suggest that the video
should have been played again in open court when the proceeding was on the
record. The video should also have been marked as an exhibit so there would
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[ASSISTANT PROSECUTOR]: And I have requested
a–
THE COURT: And I'm not going –
[ASSISTANT PROSECUTOR]: – copy of it.
THE COURT: – to make you sit here and make an
argument, because I made the argument. And because
anything you say really wouldn't change this [c]ourt's
mind, based on what I saw on that – on that video.
In appealing, the State chiefly argues that the judge could not make a
credibility finding contrary to the State's interests without a hearing at which
testimony is taken. We reject that position. If the State chooses not to call a
witness in seeking a probable cause finding, then it cannot later complain when
the judge finds that information insufficient or unworthy of belief.
Our concern is with the State's argument that the judge prevented the
prosecutor from arguing about the admissibility or significance of the video or
presenting whatever it was that he was barred from expressing. Due process
includes the right to be heard, State v. Garthe, 145 N.J. 1, 8 (1996), a right
belonging to all parties with an interest in the proceedings, State v. LaResca,
267 N.J. Super. 411, 420 (App. Div. 1993), including the prosecutor. The record
be no doubt, on appeal, about what it was that the trial judge viewed, although
there is no dispute about that here.
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establishes that the prosecutor was not given a chance to speak but instead was
cut off by the judge each time he attempted to respond to what defendant had
offered. We neither express nor intimate any view of whether probable cause
does or does not exist.
Simple fairness requires that we vacate the dismissal order and remand for
further proceedings in conformity with this opinion. If, at the conclusion of
those additional proceedings, the court should find probable cause for the
charges, then the court may reconsider the denial of the State's motion to detain
defendant.
The order of dismissal is vacated and the matter remanded for further
proceedings. We do not retain jurisdiction.
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