On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 12-06-0481 and 12-07-0570.
The opinion of the court was delivered by: Ostrer, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Lihotz and Ostrer.
The opinion of the court was delivered by OSTRER, J.A.D.
On leave granted, defendant Tyrone Steele appeals from the trial court's October 19, 2012, order denying his motion to reduce bail totaling $200,000, of which $150,000 must be cash, on two indictments charging fourth-degree offenses. We modify the bail set by the court and remand.
Defendant seeks to reduce bail of $150,000, cash only, on Passaic County indictment No. 12-07-0570, which charges him with six counts of lewdness, N.J.S.A. 2C:14-4b(1). The incidents allegedly occurred in the City of Passaic three times in June 2011, and in November 2011, February 2012 and March 2012. Defendant also seeks to reduce bail of $50,000, no ten-percent option, on a June 2012 Passaic County indictment, No. 12-06-0481, which charges that on April 5, 2012, defendant violated a condition of community supervision for life (CSL), a fourth-degree crime, N.J.S.A. 2C:43-6.4d, by failing to report two arrests to his parole officer, and to refrain from initiating contact with a minor. The two arrests were the March 23, 2012, arrest on the lewdness charges, and a March 24, 2012, arrest on theft and related charges.
Defendant is a forty-two-year-old convicted sex-offender. In connection with two separate indictments in Bergen and Passaic counties, in 1997, he pleaded guilty to first-degree kidnapping, robbery, and attempted aggravated sexual assault and was sentenced to an aggregate twenty-five-year term, with twelve-and-a-half years of parole ineligibility. He was released from prison on December 2, 2010. He is no longer subject to post-release parole, but is subject to CSL and Megan's Law. Defendant also pleaded guilty in 1994 to a charge of disorderly conduct, after a grand jury no-billed a charge of unlawful possession of a rifle.
When charged with the offenses related to the challenged bails, defendant had been released on bail in connection with two previous alleged violations of his community supervision. Defendant was charged in July and December 2011 Passaic County indictments, Nos. 11-07-0677 and 11-12-0994, in connection with allegations he entered an online computer networking site on April 25, 2011, and September 20, 2011. Bail was set at $7500, ten-percent option, on the July 2011 indictment, and $10,000, no ten-percent option, on the December 2011 indictment.
Bail was initially set on the lewdness charges at $35,000, with a ten-percent option, which defendant posted on the day he was arrested, March 23, 2012. Bail was initially set at $35,000, no ten-percent, on the theft charges, which defendant posted on March 24, 2012, the day he was arrested. A few days later, parole officers placed defendant on an electronic monitoring program, attached a monitoring bracelet to his ankle, and required that he relocate from his residential neighborhood in Passaic to a shelter in Newark. After he was arrested on April 5, 2012, on the third alleged violation of community supervision - in connection with his failure to report his March 23 and 24 arrests - bail was set by a municipal court judge at $50,000, no ten-percent.
Upon what we presume was defendant's initial bail review before Superior Court, Rule 3:26-2(c), also on April 5, the court maintained defendant's $50,000 no-ten-percent bail on the CSL charge, but increased bail on the lewdness charges, from the $35,000 ten percent, already posted, to $150,000, cash only.
Shortly thereafter, the prosecutor downgraded the theft charges, which were remanded to municipal court for disposition. The Superior Court judge reduced bail to released-on-own recognizance (ROR), although defendant had already obtained a $35,000 bond on those charges. On August 2, 2012, defendant entered a guilty plea to the downgraded theft and motor vehicle offenses. He was fined and received thirty-eight days jail credit. His driving privileges were also revoked for six months.
When defendant was arraigned on August 28, 2012, on the lewdness indictment and the new CSL indictment, the prosecutor disclosed the State's plea offer. The offer called for defendant to plead to two counts of lewdness, and to the three CSL indictments; in return, the State would recommend two concurrent terms of eighteen months on the lewdness charges, consecutive to three concurrent eighteen-month terms on the CSL charges.
The court also heard extensive argument on defendant's motion to reduce bail, and issued its oral decision on August 29, 2012, denying the motion. Defendant submitted a consent order to the court on October 19, 2012, memorializing the court's decision. Defendant then sought leave to appeal, which we granted. We invited the trial court judge to supplement her decision pursuant to Rule 2:5-1(b), which she did on December 5, 2012. We focus primarily on the court's amplified decision.
In deciding to maintain the challenged bails, the court relied on its analysis of the enumerated bail factors set forth in Rule 3:26-1, but also considered defendant's dangerousness to the community. Rule 3:26-1 states:
The factors to be considered in setting bail are: (1) the seriousness of the crime charged against defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature; (2) defendant's criminal record, if any, and previous record on bail, if any; (3) defendant's reputation, and mental condition; (4) the length of defendant's residence in the community; (5) defendant's family ties and relationships;
(6) defendant's employment status, record of employment, and financial condition; (7) the identity of responsible members of the community who would vouch for defendant's reliability; (8) any other factors indicating defendant's mode of life, or ties to the community or bearing on the risk of failure to appear, ...