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State v. C.W.

Superior Court of New Jersey, Appellate Division

March 21, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
C.W., [1] Defendant-Respondent.

          Argued March 13, 2017

         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).

          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).

          Before Judges Sabatino, Nugent and Haas.


          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.

         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 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 memorandum[2] 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 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.

         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.


         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 dates in 2 016 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 2 016, 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 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-l(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 Enforcement Directive No. 2016-6 ("Directive No. 2 016-6"), 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 misdemeanor[7] 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
(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 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; 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]

         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 2 012 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 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. Defendant appeared at the hearing with ...

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