December 18, 2017
appeal from Superior Court of New Jersey, Law Division, Salem
County, Complaint No. W-2017-000472-1708.
M. Galemba, Assistant Prosecutor, argued the cause for
appellant (John T. Lenahan, Salem County Prosecutor,
attorney; David M. Galemba, of counsel and on the brief).
Powell argued the cause for respondent.
Alexander Shalom argued the cause for amicus curiae American
Civil Liberties Union of New Jersey (American Civil Liberties
Union of New Jersey Foundation, attorneys; Alexander Shalom,
Edward L. Barocas, and Jeanne LoCicero, on the brief).
O'Donnell Meng, Assistant Deputy Public Defender, argued
the cause for amicus curiae New Jersey Office of the Public
Defender (Joseph E. Krakora, Public Defender, attorney; Molly
O'Donnell Meng, 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; Claudia Joy Demitro, of
counsel and on the brief).
Judges Messano, Accurso, and Vernoia.
appeal presents an issue of first impression under the
Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26
(the CJRA). N.J.S.A. 2A:162-19(e)(1) provides that at a
pretrial detention hearing, a "defendant has the right
to be represented by counsel, and . . . shall be afforded an
opportunity to testify, to present witnesses, to
cross-examine witnesses who appear at the hearing, and to
present information by proffer or otherwise." (Emphasis
added). We consider whether this provision of the CJRA
permits a defendant to subpoena "adverse witnesses,
" in this case, police officers, to testify at a
pretrial detention hearing.
Dakevis A. Stewart was arrested by members of the Penns Grove
Police Department and charged with possession of a firearm
for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); unlawful
possession of a firearm, N.J.S.A. 2C:39-5(b); possession of a
firearm by certain persons not to possess a weapon, N.J.S.A.
2C:39-7(b)(1); tampering with physical evidence, N.J.S.A.
2C:28-6(1); and resisting arrest by flight, N.J.S.A.
2C:29-2(a)(1). At the time, defendant was subject to an
order of pre-trial release with certain non-monetary
conditions that was entered following a June arrest for
possession of a controlled dangerous substance and other
following day, the State of New Jersey moved for
defendant's pre-trial detention on the new arrest, as
well as revocation of his release on the June arrest. At the
pretrial detention hearing, the State moved into evidence the
complaint-warrant; the Public Safety Assessment (PSA)
prepared by Pretrial Services; a Preliminary Law Enforcement
Incident Report (PLEIR) and affidavit of probable cause
prepared by Patrolman Joseph Johnson; the pretrial release
order from the prior arrest; and a pretrial monitoring
Services assigned defendant PSA scores of five for both risk
of failure to appear (FTA) and new criminal activity (NCA).
There was no New Violent Criminal Activity (NCVA) flag.
Pretrial Services recommended against defendant's
affidavit of probable cause stated that on September 20,
2017, Johnson responded to a report of gunshots in the area
of the Penn Village Apartments. As the officer turned onto a
street near the apartment complex, he saw a vehicle, coming
toward him at high speed. Johnson intercepted the vehicle and
its driver, later identified as defendant, exited and ran
through a nearby cemetery. Other officers arrived and Johnson
advised them of his observations and gave a description of
the driver. These officers gave chase and saw defendant throw
a handgun to the ground. The gun was retrieved by police, who
later learned that defendant was prohibited from possessing a
handgun because of his criminal history.
PLEIR supplied some additional information. Patrolman Tim
Haslett "personally observed the offense"; police
recorded the statement of a witness on a body camera;
defendant appeared to be under the influence of drugs or
alcohol at the time and was injured by a police dog after he
tried to flee; and a member of the public provided
information to the 911 call center. The State advised the
judge it would proceed by proffer and argued the evidence
established probable cause that defendant had committed the
counsel had served Johnson, who was present, with a subpoena
to testify. Counsel argued that N.J.S.A. 2A:162-19(e)(1)
permitted defendant to call witnesses at a pretrial detention
hearing. He also intended to subpoena four other police
officers identified in the arrest report as having supplied
information to Johnson for the affidavit. Specifically
stating that the hearing was "at the probable cause
stage, " the judge preliminarily ruled that defendant
could call Johnson and the other officers on the issue of
a short recess, the State argued that allowing defendant to
call the State's witnesses to challenge the factual
statements in the affidavit would convert the detention
hearing into a "mini-trial." It requested a stay of
the proceedings. The judge indicated that she had not
realized Johnson was the affiant and concluded that defendant
had not proffered any information to challenge Johnson's
statements in the affidavit. The judge expressed concern that
permitting defendant to attack the credibility of
Johnson's statements by calling him as a witness would
result in a "mini-trial." However, the judge
concluded defendant could challenge probable cause by calling
other witnesses who allegedly observed defendant commit the
offenses, such as the other four police officers, and ruled
defendant could subpoena the officers to testify as to
judge entered an order permitting defendant "to subpoena
the [police] officers at the scene of the incident to testify
at the [d]etention [h]earing." She stayed the hearing so
the State could seek emergent appellate review. We granted
the State's motion for leave to appeal, stayed further
proceedings in the Law Division and ordered defendant's
continued detention pending our decision. Thereafter, we
granted motions filed by the Office of the Attorney General