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State v. Robinson

Superior Court of New Jersey, Appellate Division

February 8, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
HABEEB ROBINSON, Defendant-Respondent.

          Argued January 31, 2017

         On appeal from the Superior Court of New Jersey, Law Division, Essex County, Complaint-Warrant No. W20160256160714 .

          Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Ducoat, of counsel and on the brief).

          Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, of counsel and on the brief).

          Claudia Joy Demitro, Deputy Attorney General, argued the cause for amicus curiae Attorney General (Christopher S. Porrino, Attorney General, attorney; Ms. Demitro, of counsel and on the brief).

          Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey Foundation (Mr. Shalom, Edward L. Barocas and Jeanne LoCicero, on the brief).

          Before Judges Reisner, Koblitz and Rothstadt.


          REISNER, P.J.A.D.

         In this appeal, we address the scope of the discovery which the State must produce prior to a pretrial detention hearing held under the Bail Reform Act (Act), N.J.S.A. 2A:162-15 to -26. Rule 3:4-2(c)(1)(B), which was part of a comprehensive set of rule amendments adopted to implement the Act, provides:

[I]f the prosecutor is seeking pretrial detention, the prosecutor shall provide the defendant with all statements or reports in its possession relating to the pretrial detention application. All exculpatory evidence must be disclosed.

[R. 3:4-2(c)(1)(B).]

         This appeal primarily focuses on the meaning of the phrase "relating to the pretrial detention application."[1] In this case, defendant was arrested on January 4, 2017, and charged with murder based on an affidavit of probable cause reciting that two eyewitnesses saw defendant shoot the victim, and the witnesses identified defendant from a photo array. The Preliminary Law Enforcement Information Report (PLEIR)[2] also stated that the police had surveillance video footage relevant to the commission of the crime. The defense asked for those documents, and the State refused to provide them.

         As a result, the January 10, 2017 pretrial detention hearing devolved into a dispute over discovery, with the State insisting that its discovery obligation was limited to producing the probable cause affidavit and the PLEIR. Judge Ronald D. Wigler rejected that argument. Instead, keying the State's discovery obligation to the evidence referenced in the probable cause affidavit and related information listed in the PLEIR, Judge Wigler required the prosecutor to produce as discovery the two eyewitness statements, the photo array, and the surveillance video listed in the PLEIR. He also ordered the State to turn over any initial police reports that related to the application.

         We conclude that Judge Wigler correctly interpreted Rule 3: 4-2(c)(1)(B). The State's argument, which it repeats on this appeal, is contrary to the plain language and textual context of the rule, as well as its purpose. The State's contention is also directly contrary to the position it asserted before the Criminal Practice Committee - including the version of the rule the State advocated - during the Committee's comprehensive review of Court Rule amendments needed to implement the Act. The State's submissions were included in the Committee's report to the Supreme Court and thus became part of the legislative history of section (B) as adopted by the Court. See Rep, of the Sup. Ct. Comm. on Criminal Practice on Recommended Court Rules to Implement the Bail Reform Law, Part 1, Pretrial Release (May 9, 2016) (CPC Report) .

         We conclude that Judge Wigler correctly interpreted the rule as entitling a defendant to discovery of the factual materials on which the State bases its application for defendant's pretrial detention, and not merely the hearsay description of those materials set forth in the probable cause affidavit and the PLEIR.

         We reject the State's contention that it need only produce the materials described in the affidavit if it says it relies on them. Clearly, the State relies on the affidavit to establish probable cause, and therefore, the materials described by hearsay in the affidavit "relate" to the detention application. R. 3:4-2(c)(1)(B). Moreover, the trial court cannot be expected to ignore what is set forth in the probable cause affidavit in considering the weight of the State's evidence, N.J.S.A. 2A:162-20(a), and the defense cannot meaningfully respond to the application without seeing at least the most critical evidence supporting the State's allegations.

         In this case, the State alleged that defendant committed a murder in view of two eyewitnesses and a surveillance camera. The State's probable cause affidavit turned on identification of defendant as the shooter, and thus the required discovery would be the materials "relating to" that aspect of the State's motion. R. 3:4-2(c)(1)(B). We agree with Judge Wigler that defendant was entitled to discover the statements of the two eyewitnesses; the photo array described in the probable cause affidavit as having been used in the identification process; the surveillance video; and the initial police reports of the crime. Accordingly, we affirm the January 10, 2017 discovery order.[3] We also vacate the stay of the order that was entered pending appeal, and remand this case to the trial court to complete discovery and hold the detention hearing forthwith.[4]

         Finally, we understand that, because of the expedited nature of the pretrial detention hearing process, all parties need clear guidance as to the State's discovery obligations. In particular, the State needs to know with some specificity what documents it must produce when it files its detention application, an event that will usually occur shortly after defendant's arrest. At oral argument, defendant and the amicus American Civil Liberties Union agreed that under the Rule, the State's initial discovery obligation is limited to the materials in the State's possession that are referenced in the probable cause affidavit and the related materials listed in the PLEIR.[5] That is consistent with our interpretation of the Rule.

         To be clear, if such materials are in the possession of the police, they are in the State's possession and the prosecutor must produce them. See State v. Womack, 145 N.J. 57 6, 5 89, cert, denied, 519 U.S. 1011, 117 S.Ct. 517, 136 L.Ed.2d 405 (1996); State v. Mustaro, 411 N.J.Super. 91, 102 (App. Div. 2009). We expect that all parties will act cooperatively in implementing Rule 3:4-2(c)(1)(B), and that they will use available electronic communication methods to promptly produce and receive discovery. While there may be occasional glitches in producing discovery, those should be the exception rather than the rule, to avoid delaying the pretrial detention hearings and compromising the rights of defendants.


         Because this is the first opinion to address an issue under the Bail Reform Act, it will be helpful to review the history and content of the Act to put the legal issues in context.

          The Constitutional Amendment and the Bail Reform Act

         Effective January 1, 2017, the voters of New Jersey approved a constitutional amendment providing a right to pretrial release, but authorizing pretrial detention under certain limited circumstances, N.J. Const, art. I, ¶ 11:

All persons shall, before conviction, be eligible for pretrial release. Pretrial release may be denied to a person if the court finds that no amount of monetary bail, nonmonetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person's appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process. It shall be lawful for the Legislature to establish by law procedures, terms, and conditions applicable to pretrial release and the denial thereof authorized under this provision.

[N.J. Const, art. I, ¶ 11 (amended effective 2017).]

         To meet this constitutional mandate, and its shift from a pretrial system based on the right to bail, New Jersey adopted a risk-based approach unrelated to a defendant's ability to pay. 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. 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.

         Historically, in New Jersey, individuals had a constitutional right to bail before trial in all criminal cases, "except for capital offenses when the proof is evident or the presumption great." N.J. Const, art. I, ¶ 11; N.J. Const, of 1844 art. I, ¶ 10. Although this fundamental right to bail was first incorporated into the New Jersey Constitution in 1844, it existed by statute prior to the 1776 Constitution. State v. Johnson, 61 N.J. 351, 354 (1972) (citing Leaming & Spicer, Grants and Concessions of New Jersey, 1664-1702 235 (1881)).

         The constitutional amendment approved by voters in November 2014 arose from the recognition that a sizable number of pretrial defendants stayed in jail before trial because of their inability to pay relatively small amounts of bail. Pub. Hearing before Senate Law and Pub. Safety Comm., Senate Concurrent Resol. 128, at 2 (July 24, 2014), legislativepub/pubhear/slp 07242014.pdf (Public Hearing). The reliance on bail also led to the pretrial release of high-risk defendants without appropriate individual assessments. Public Hearing, supra, at 1-2. The 2014 constitutional amendment was intended to address these issues.

         In 2014, the Legislature adopted a new law to take effect on the same day as the constitutional amendment. Effective on January 1, 2017, the Bail Reform Act established reforms for bail and other forms of pretrial release and for pretrial detention, established statutory speedy trial deadlines, and made other changes to court administration and court-related programs. See Statement to S. 94 6 (July 31, 2014).

         The three-fold purpose of the Bail Reform Act is to primarily rely upon pretrial release by non-monetary means "to reasonably assure an eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, [and] that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process." N.J.S.A. 2A:162-15. The Act further seeks to assure that "the eligible defendant will comply with all conditions of release, while authorizing the court, upon motion of a prosecutor, to order pretrial detention . . . when it finds 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. Under the statute, a court may set monetary bail "only when it is determined that no other conditions of release will reasonably assure the eligible defendant's appearance in court when required." N.J.S.A. 2A:162-15. For purposes of bail reform, an eligible defendant means "a person for whom a complaint-warrant is issued for an initial charge involving an indictable offense or a disorderly persons offense unless otherwise provided" in the statute. N.J.S.A. 2A:162-15.

         The Bail Reform Act provides that an eligible defendant, following the issuance of a complaint-warrant, will be temporarily detained to allow the Pretrial Services Program (PSP) the opportunity to "prepare a risk assessment with recommendations on conditions of release." N.J.S.A. 2A:162-16(a); see N.J.S.A. 2A:162-25. The court must make a pretrial release decision "in no case later than 48 hours after the eligible defendant's commitment to jail." N.J.S.A. 2A:162-16(b)(1). The court may release a defendant on his or her own recognizance, or may order the pretrial release subject to certain conditions. N.J.S.A. 2A:162-17.

         If the prosecutor makes a motion for pretrial detention, the eligible defendant must be detained in jail pending a pretrial detention hearing. N.J.S.A. 2A:162-18, -19. The hearing must be held no later than the defendant's first appearance, unless either the eligible defendant or the prosecutor seeks a continuance, or unless the prosecutor files the motion after the first appearance. N.J.S.A. 2A:162-19(d). Upon filing of the prosecutor's motion, and during any continuance granted by the court, the eligible defendant must remain in jail. N.J.S.A. 2A:162-19(d)(2). If the eligible ...

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