March 13, 2017
appeal from Superior Court of New Jersey, Law Division, Ocean
County, Docket No. W-2017-000015-1516.
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).
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).
Judges Sabatino, Nugent and Haas.
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
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.
reasons amplified in this opinion, we construe the Act and
the associated provisions within Rule 3:4A as
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.
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.
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
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
in this regard, the Acting Administrative Director of the
Courts recently announced in a March 2, 2017 guidance
memorandum 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
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, 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.
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.
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.
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.
these and other reasons explained in this opinion, we remand
this matter to the trial court for expeditious
reconsideration of its ruling.
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.
Charged Offenses and the State's Investigation
to the State, in May 2 016, defendant, who was then age
nineteen, approached the minor, who was then eleven years
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.
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.
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.
with the investigation, detectives interviewed defendant at a
local police station on January 19, 2017. 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
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.
Pretrial Services Risk Assessment and Recommendation
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 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.
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.
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
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.
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."
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.
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
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.
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.
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
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.
State's Motion for Pretrial Detention
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 ...