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State v. Stewart

Superior Court of New Jersey, Appellate Division

January 19, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
DAKEVIS A. STEWART, Defendant-Respondent.

          Argued December 18, 2017

         On appeal from Superior Court of New Jersey, Law Division, Salem County, Complaint No. W-2017-000472-1708.

          David 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).

          Wayne 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).

          Molly 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).

          Before Judges Messano, Accurso, and Vernoia.

          OPINION

          MESSANO, P.J.A.D.

         This 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.

         I.

         Defendant 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).[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 offenses.

         The 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 violation report.

         Pretrial 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 release.[2]

         The 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.

         The 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 charged offenses.

         Defense 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.[3] 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 probable cause.

         Following 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 probable cause.[4]

         The 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 ...


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