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State v. Robinson

Supreme Court of New Jersey

May 10, 2017

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

          Argued March 29, 2017

         On appeal from the Superior Court, Appellate Division, whose opinion is reported at 448 N.J.Super. 501 (App. Div. 2017) .

          Elie Honig, Director, Division of Criminal Justice, Office of the Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Claudia Joy Demitro, Deputy Attorney General, of counsel and on the briefs).

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

          Paul H. Heinzel, Somerset County Assistant Prosecutor, argued the cause for amicus curiae, County Prosecutors Association of New Jersey (Richard T. Burke, President, attorney).

          Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Alexander R. Shalom, Edward L. Barocas, and Jeanne M. LoCicero on the brief).

         RABNER, C. J., writing for a majority of the Court.

         In this appeal, the Court considers the newly enacted Criminal Justice Reform Act for the first time and addresses the type and scope of discovery the State must provide when it seeks to detain a defendant pretrial.

         The Criminal Justice Reform Act (CJRA), N.J.S.A. 2A: 162-15 to -26, has three principal components. First, it allows for pretrial detention of defendants who present such a serious risk of danger, flight, or obstruction that no combination of release conditions would be adequate. Second, it replaced the system's prior heavy reliance on monetary bail and instead calls for an objective evaluation of risk level and consideration of conditions of release. Finally, the Act establishes statutory speedy trial deadlines. The CJRA took effect on January 1, 2017.

         N.J.S.A. 2A: 162-18(a) authorizes the court to order pretrial detention if it finds by clear and convincing evidence that no conditions of release would reasonably assure a defendant's appearance in court, the safety of the community, and the integrity of the criminal justice process. A rebuttable presumption of detention exists when the court finds probable cause for murder or a crime subject to life imprisonment. N.J.S.A. 2A: 162-19(b).

         When a prosecutor applies for pretrial detention, the defendant is held pending a hearing. N.J.S.A. 2A: 162-19(d)(2). "In pretrial detention proceedings for which there is no indictment, the prosecutor shall establish probable cause that the eligible defendant committed the predicate offense." N.J.S.A. 2A: 162-19(e)(2). A defendant can rebut a presumption of detention, when one applies, by a preponderance of the evidence. Ibid. If a court orders detention, its decision must be supported by clear and convincing evidence. N.J.S.A. 2A: 162-19(e)(3).

         At the hearing, "the court may take into account": (a) "[t]he nature and circumstances of the offense charged; (b) [t]he weight of the evidence against the eligible defendant"; (c) the defendant's "history and characteristics"; (d) the danger posed by release; (e) the risk of obstruction of justice; "and (f) [t]he release recommendation" of the Public Safety Assessment (PSA) prepared under N.J.S.A. 2A:162-25. N.J.S.A. 2A:162-20.

         After the Legislature enacted the CJRA, the Court asked the Criminal Practice Committee to propose amendments to the court rules. The Committee divided sharply about the amount and type of discovery that should be required for pretrial detention hearings. The Court struck a compromise: "if 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." IL 3:4-2(c)(1)(B).

         The police arrested defendant Habeeb Robinson for killing a victim. According to the affidavit, two eyewitnesses saw the shooting. One identified defendant from a six-person photo array; the other identified a photo of defendant. The Preliminary Law Enforcement Incident Report (PLEIR) adds that a surveillance camera recorded the incident. The pending complaint charges defendant with first-degree murder and weapons offenses. The PSA recommended that defendant not be released.

         The State moved for pretrial detention. At the hearing, the State relied on the hearsay statements in the affidavit of probable cause (which refer to the two eyewitnesses); the presumption of detention under N.J.S.A. 2A:I62-I9(b)(1) (based on the murder charge); defendant's criminal history and record of court appearances; and the release recommendation in the PSA. The trial court directed the State to disclose the two witness statements, the photos used in the identification process, the surveillance video, and any incident report that the police prepared.

         The Appellate Division affirmed the trial court's order. 448 N.J.Super. 501, 506 (App. Div. 2017). The Court agreed to hear the State's motion for leave to appeal on an accelerated basis.

         HELD: Both the trial court and the Appellate Division directed the State to disclose the statements of two eyewitnesses, photos used in the identification process, any incident report of the crime prepared by the police, and a surveillance video. Rule 3:4-2(c)(1)(B) required disclosure of the reports and the photos but not the video. The Court also clarifies and reframes the Rule to help ensure that it strikes the proper balance between two important concerns: a defendant's liberty interest and the State's ability to seek to detain high-risk defendants before trial.

         1. Thoughtful people have wrestled over the scope of discovery that should be required at a detention hearing. A number of considerations factor into the ongoing debate: the language of the statute; important concerns for public safety; and the defendants' liberty interests. In addition, the discovery rule should not impose impractical demands on law enforcement. The administration of justice calls for fair and efficient proceedings. In the case of a detention application, the focus is not on guilt, and the hearing should not turn into a mini-trial, (pp. 26-29)

         2. To balance those aims, the Court sets forth principles to govern the disclosure of evidence at a detention hearing: (1) because the Act calls for a determination of probable cause and an assessment of the risk of danger, flight, and obstruction, which may include consideration of the nature and circumstances of the offense and the weight of the evidence, discovery should likewise be keyed to both areas; (2) the complaint, (3) the PSA, (4) the affidavit of probable cause, and (5) any available PLEIR must be disclosed; (6) all statements and reports relating to the affidavit of probable cause should be disclosed; (7) all statements or reports that relate to any additional evidence the State relies on to establish probable cause at the detention hearing should be disclosed; (8) statements and reports related to items that appear only in the PLEIR need not be disclosed; (9) statements and reports relating to the risk of Light, danger, and obstruction, which the State advances at the hearing, should be disclosed; the phrase "statements and reports" (10) refers to items that exist at the time of the hearing and does not encompass video and audio files as a general rule, but does (11) encompass reports that are in the possession of the prosecutor, law enforcement officials, and other agents of the State; and (12) all exculpatory evidence must be disclosed, (pp. 29-32)

         3. With those principles in mind, and based on the Rule's practical application since January 1, 2017, the Court clarifies and revises Rule 3:4-2(c), effective at once. The revisions are to be read with Rule 3:13-3, which obligates the State to provide full discovery when it makes a pre-indictment plea offer or when an indictment is returned or unsealed. In appropriate cases, the prosecutor may apply for a protective order directly to the judge who will preside over the detention hearing. If, after an extensive, long-term investigation, the State seeks permission to provide more limited discovery, judges may direct that a representative sample of statements and reports be disclosed before the detention hearing. When the Court adopted the original Rule, it unanimously rejected the recommendation that videotapes be disclosed before a detention hearing. The revised rule maintains that approach, (pp. 32-36)

         4. The discovery rule-in its original and revised form-satisfies the requirements of due process and passes muster under the Federal and New Jersey Constitutions, (pp. 37-40)

         5. Applying Rule 3:4-2(c), as clarified, to this case, any initial police reports about the witnesses must be disclosed, and the prosecution must provide copies of statements or reports of the two eyewitnesses. When an eyewitness makes an identification, the State must document the process and record certain details. That information should be disclosed along with copies of any photo arrays or photos used in the identification process. Because photos shown as part of an identification receive special treatment under the law, their disclosure is an exception to the rule. Neither the original nor the revised Rule calls for disclosure of surveillance videos and similar items, (pp. 41-42)

         The judgment of the Appellate Division is AFFIRMED and MODIFIED. The revised Rule 3:4-2(c) shall go into effect at once.

          JUSTICE ALBIN, DISSENTING IN PART, concurs in the judgment in this case based on the language of the then-operative Rule but dissents from the majority's decision to draft a new rule. In Justice Albin's view, the redrafted Rule sanctifies artificial distinctions, making highly relevant evidence non-discoverable (a videotape) and second-hand evidence discoverable (written summary of tape). The redrafted Rule also gives the prosecutor a perverse incentive to place information, not in the affidavit of probable cause, but rather in the PLEIR because reports and statements referenced in the PLEIR are non-discoverable.

          JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER's opinion.

         Rule 3:4-2(c)

         (c) Procedure in Indictable Offenses. At the defendant's first appearance before a judge, if the defendant is charged with an indictable offense, the judge shall

(1) give the defendant a copy of the complaint, discovery as provided in subsections (A) and (B) below, and inform the defendant of the charge;
(A) if the prosecutor is not seeking pretrial detention, the prosecutor shall provide the defendant with a copy of any available preliminary law enforcement incident report concerning the offense and the affidavit of probable cause;
(B) if the prosecutor is seeking pretrial detention, the prosecutor shall provide the defendant with (i) the discovery listed in subsection (A) above, (ii) all statements or reports relating to the affidavit of probable cause, (iii) all statements or reports relating to additional evidence the State relies on to establish probable cause at the hearing, (iv) all statements or reports relating to the factors listed in N.J.S.A. 2A:I62-I8(a)(l') that the State advances at the hearing, and (v) all exculpatory evidence.

          OPINION

          RABNER, CHIEF JUSTICE

         In this appeal, we consider the newly enacted Criminal Justice Reform Act for the first time and address the type and scope of discovery the State must provide when it seeks to detain a defendant pretrial.

         The new law changed the landscape of the State's criminal justice system relating to pretrial release. The statute marked a shift away from heavy reliance on monetary bail. Judges now have the authority to detain defendants prior to trial if they present a serious risk of danger, flight, or obstruction. N.J.S.A. 2A:162-18(a)(1). Defendants who pose less risk can be released on their own recognizance or on conditions that pretrial services officers monitor. N.J.S.A. 2A:162-17, -25(d). The law also sets forth new speedy trial rules that apply to defendants who are detained. N.J.S.A. 2A:162-22.

         In this case, defendant Habeeb Robinson was arrested on January 4, 2017 and charged with murder and weapons offenses. The State moved to detain him. In connection with the detention hearing, both the trial court and the Appellate Division directed the State to disclose the statements of two eyewitnesses, photos used in the identification process, any incident report of the crime prepared by the police, and a surveillance video.

         We find that Rule 3:4-2(c)(1)(B), on which the courts relied, required disclosure of the reports and the photos but not the video. We also take this opportunity to clarify and reframe the Rule to help ensure that it strikes the proper balance between two important concerns: a defendant's liberty interest and the State's ability to seek to detain high-risk defendants before trial.

         I.

         We begin with an overview of the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A: 162-15 to -26, and certain related court rules to offer context for the discussion that follows.

         A.

         Before this year, New Jersey had long guaranteed defendants the right to bail. The 1844 Constitution added a provision that had existed by statute for more than a century: "All persons shall, before conviction, be bailable by sufficient sureties, except for capital offences, when the proof is evident or presumption great." N.J. Const, of 1844, art. I, ¶ 10; see also State v. Johnson, 61 N.J. 351, 354 (1972). The 1947 Constitution retained the same language. N.J. Const, of 1947, art. I, ¶ 11 (2016) .

         Beginning in 2007, when the Legislature eliminated the death penalty for murder, see State v. Fortin, 198 N.J. 619, 624 (2009), the constitutional right to bail applied in all cases, see Report of the Joint Committee on Criminal Justice 18-19, 18 n.42 (Mar. 10, 2014), http://www.judiciary.state.nj.us/pressrel/ 2014/FinalReport_3_20_2014.pdf (JCCJ Report).

         In practice, New Jersey's system of pretrial release relied heavily on the use of monetary bail "to insure [the] presence of the accused at the trial." Johnson, supra, 61 N.J. at 364. Defendants had to post cash or arrange for a bond to secure their release.

         The system had direct consequences: any defendants -- even those who posed a substantial risk of flight or danger to the community -- could be released if they had access to untainted funds to post as bail. See N.J.S.A. 2A:162-13(b). Meanwhile, poorer defendants accused of less serious crimes, who presented minimal risk, were held in custody if they could not post even modest amounts of bail.

         A March 2013 study of New Jersey's county jails revealed that twelve percent of inmates were in custody pretrial because they could not pay $2500 or less. Marie VanNostrand, Ph.D., Luminosity & the Drug Policy Alliance, New Jersey Jail Population Analysis 13 (Mar. 2013), https://university.pretrial. org/viewdocument/new-jersey-jail-popu. About 800 inmates "could have secured their release for $500 or less"; "an additional 259 inmates could have secured their release for between $501 and $1, 000[;] and an additional 489 inmates could have secured their release for between $1, 001 and $2500." Ibid. In other words, one in eight inmates, who posed little risk, sat in jail pretrial because they were poor, while defendants charged with serious crimes who posed a substantial risk of danger or flight could be released into the community without monitoring so long as they could make bail.

         A number of steps were taken in the past five years to address those system-wide problems. In 2012, Governor Christie called for a constitutional amendment to allow for pretrial detention in serious cases. Administrative Office of the Courts, Criminal Justice Reform: Annual Report to the Governor & Legislature 1 (2016), https://www2.njcourts.gov/courts/assets/ criminal/2Ol6cjrannual.pdf. The following year, the Judiciary established the Joint Committee on Criminal Justice, "comprised of members from all three branches of state government including the Attorney General, Public Defender, private attorneys, judges, court administrators, and representatives of the Legislature and the Governor's Office, to examine New Jersey's criminal justice system." Ibid. The Committee issued a report in March 2014, which recommended a series of changes to New Jersey's criminal justice system and focused, in particular, on bail reform and the need for a speedy trial act. See JCCJ Report, supra, at 1.

          The Legislature held hearings to consider the Committee's findings and recommendations, and ultimately adopted a proposal to amend the State Constitution to permit detention

if the court finds that no amount of monetary bail, non-monetary 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.

[S. Con. Res. No. 128, 216th Leg. (2014).]

         The Legislature also drafted a bill, S. 946/A. 1910 (2014), discussed in detail below, to reform the system of pretrial release and provide for more timely trials for defendants who are detained. Governor Christie signed the new law on August 11, 2014. L. 2014, c. 31 (codified at N. J.S.A. 2A:162-15 to - 26) .

         The Criminal Justice Reform Act has three principal components. First, it allows for pretrial detention of defendants who present such a serious risk of danger, flight, or obstruction that no combination of release conditions would be adequate. N.J.S.A. 2A:162-18(a)(1). Second, the Act replaced the system's prior heavy reliance on monetary bail. The law instead calls for an objective evaluation of each defendant's risk level and consideration of conditions of release that pretrial services officers will monitor. N.J.S.A. 2A:162-17, - 25(d) . In that way, low-level offenders will not be penalized because they cannot afford to post bail. Finally, the Act establishes statutory speedy trial deadlines for defendants who are detained pending trial. N.J.S.A. 2A:162-22.

         The law was contingent on passage of the proposed constitutional amendment, which voters approved by a wide margin of 61.8 to 38.2 percent in November 2014. Div. of Elections, Dep't of State, Official List: Public Question Results for 11/04/2014 General Election Public Question No. 1 1 (Dec. 2, 2014), http://nj.gov/state/elections/2014-results/2014-official-general-public-question-1.pdf.

         The Criminal Justice Reform Act took effect on January 1, 2017. N.J.S.A. 2A:162-15 to -26. We summarize its provisions and focus in particular on parts of the law that relate to pretrial detention.

         The Act "shall be liberally construed" to effect its purpose: to rely primarily on "pretrial release by non-monetary means to reasonably assure" that a defendant will "appear[] in court when required, " will not endanger "the safety of any other person or the community, " and "will not obstruct or attempt to obstruct the criminal justice process." N.J.S.A. 2A:162-15. If a court finds by clear and convincing evidence that "no condition or combination of conditions" would achieve those goals, the court, upon motion by the prosecutor, may order that a defendant be held pending trial. Ibid.

         A court may set monetary bail "only when ... no other conditions of release will reasonably assure the eligible defendant's appearance in court." Ibid. The statute defines "eligible defendant" as a person initially charged in a complaint-warrant with an indictable offense or a disorderly persons offense, unless otherwise stated. Ibid.

         After a complaint-warrant is issued, eligible defendants "shall be temporarily detained to allow the Pretrial Services Program to prepare a risk assessment" and recommend conditions of release. N.J.S.A. 2A:162-16(a); see also N.J.S.A. 2A:162-25. Within 48 hours of a defendant's commitment to jail, the court must "make a pretrial release decision." N.J.S.A. 2A:I62-16(b)(1). Defendants who are released must receive notice of any conditions imposed and the consequences for violating them. N.J.S.A. 2A:l62-23(a)(1); see also N.J.S.A. 2A:162-24 (noting process for violations).

         The CJRA outlines a hierarchy of release decisions to assure a defendant's return to court and protect both public safety and the integrity of the criminal justice process: (i) release on personal recognizance or an unsecured appearance bond, N.J.S.A. 2A:I62-I6(b)(2)(a), -17(a); (ii) if that is inadequate, release on non-monetary conditions that are the least restrictive conditions necessary, N.J.S.A. 2A:I62-16(b)(2)(b), -17(b); (iii) if that is inadequate, release on monetary bail -- but only to reasonably assure the defendant's appearance in court, N.J.S.A. 2A:162-16(b)(2)(c), -17(c); (iv) if that is inadequate, release on both monetary and non-monetary conditions, N.J.S.A. 2A:162-16(b)(2)(c), -17(d); and (v) if that is inadequate and the prosecutor has moved for pretrial detention, order that the defendant remain detained pending a pretrial detention hearing, N.J.S.A. 2A:162-16(b)(2)(d).

         Sections 18 to 20 of the Act set forth procedures for pretrial detention hearings, N.J.S.A. 2A:162-18 to -20, and are discussed in the following section.

         The Act's speedy trial deadlines appear in section 22. Except for "excludable time for reasonable delays, " defendants cannot remain in jail for more than 90 days before the return of an indictment, or more than 180 days after indictment and before the start of trial. N.J.S.A. 2A:162-22(a)(1)(a), (a)(2). The statute lists thirteen periods of excludable time, N.J.S.A. 2A:162-22(b), and sets an outer limit of two years for pretrial detention in a single matter, aside from any delays attributable to the defendant. N.J.S.A. 2A:l62-22(a)(2)(a), (a)(2)(c); see also R. 3:25-4(d) .

         Section 25 establishes a Pretrial Services Program. Among other responsibilities, pretrial services officers prepare a risk assessment for each defendant for the court's use, N.J.S.A. 2A:162-25(b), (c), and monitor defendants who are released on conditions, N.J.S.A. 2A:162-25(d).

         In many respects, the text of the Criminal Justice Reform Act follows the federal Bail Reform Act of 1984, 18 U.S.C.A. §§ 3141 to 3156, and the District of Columbia's statutory scheme for pretrial detention, D.C. Code. §§ 23-1321 to -1333. As State Senator Norcross, one of the Act's sponsors, noted at a public hearing, the Legislature looked to both laws among others when it framed New Jersey's reform measure. Pub. Hearing Before S. Law & Pub. Safety Comm., S. Con. Res. 128 2 (2014). The CJRA, however, contains additional safeguards for pretrial detention hearings. We turn to those now.

         B.

         Several sections of the Criminal Justice Reform Act are critical to this appeal: N.J.S.A. 2A:162-18, -19, and -20.

         Section 18(a) authorizes the court to order pretrial detention if it finds by clear and convincing evidence that no conditions of release would reasonably assure a defendant's appearance in court, the safety of the community, and ...


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