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State v. S.N.

Supreme Court of New Jersey

January 30, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
S.N., Defendant-Respondent.

          Argued September 11, 2017

         On appeal from the Superior Court, Appellate Division.

          Sarah Lichter, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Sarah Lichter, of counsel and on the brief; Jeffrey L. Weinstein, Hunterdon County Assistant Prosecutor, on the brief).

          Philip De Vencentes argued the cause for respondent (Galantucci, Patuto, De Vencentes, Potter & Doyle, attorneys; Philip De Vencentes, on the briefs; Richard G. Potter, of counsel and on the briefs).

          Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor Director, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Richard T. Burke, President, attorney; Frank J. Ducoat, of counsel and on the brief; Kayla Elizabeth Rowe, on the brief).

          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).

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

          SOLOMON, J., writing for the Court

         In this appeal, the Court determines the proper standard for appellate review of pretrial detention decisions under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A: 162-15 to -26.

         In March 2017, law enforcement obtained an arrest warrant for defendant S.N. for acts alleged to have been committed against his stepdaughter in 2012. In a complaint-warrant, the State charged defendant with first-degree aggravated sexual assault on a person under the age of thirteen; fourth-degree lewdness; and second-degree child endangerment. The affidavit of probable cause in support of the complaint-warrant stated that the victim told a staff member at her school that defendant came into her bedroom and sexually assaulted her approximately fifty times while she was in the sixth and seventh grades. In addition, the State prepared a preliminary law enforcement incident report (PLEIR), which stated that "defendant was known to the victim as [f]amily."

         Following defendant's arrest, a pretrial services officer prepared a Public Safety Assessment (PSA) that rated defendant a 1 out of 6-the lowest possible risk score-for both failure to appear and new criminal activity. Despite the low risk scores, the PSA concluded "No Release Recommended."

         The State moved for pretrial detention. The prosecution certified that there is a "serious risk" that "defendant will not appear in court, " and "defendant will pose a danger to any other person or the community." In addition, the certification stated, "[defendant's victim is his step-daughter. Defendant is a risk to harm and intimidate his victim and her mother and to obstruct justice by interfering with the investigation and witnesses. Defendant is a risk of flight because his biological mother and sister live in Canada."

         Defense counsel countered that the State did not present clear and convincing evidence to support its detention motion, and that the State's arguments were based on "mere speculation." Defense counsel noted that defendant had no prior record, including no disorderly persons offenses, had no failures to appear, was gainfully employed, and had the support of his adoptive parents, who live in New Jersey. Regarding defendant's biological mother in Canada, counsel stated defendant has not had "telephonic or face-to-face contact with her" and defendant "doesn't even know where she lives." Further, defense counsel claimed that defendant lived in the same home as the victim "until a couple of years ago" and that "no further problems apparently . .. have been even alleged."

         The trial court found that the State had established probable cause that defendant committed the charged offenses. In making the pretrial detention determination, the judge reviewed the circumstances of the charged offenses, the potential sentence if convicted, defendant's risk of flight in light of his dual U.S. and Canadian citizenship, and the potential for defendant's obstruction of the criminal justice process. The court specifically found that defendant is eligible for detention under the statute "because this is a first degree [offense] with No Early Release attaching to it pursuant to N.J.S.A. 2A:162-19(a)(1)." The court gave "great weight to NERA, the fact that this is a NERA offense and first degree, the dual citizenship, due to the extensi[ve] exposure of incarceration if convicted, the fact that release was not recommended, and the fact that this is considered a violent offense."

         The Appellate Division reversed and released defendant with conditions. The panel, citing State v. C.W.. 449 N.J.Super. 231 (App. Div. 2017), found that "[t]he trial court abused its discretion by not considering defendant's age, level of prior criminal involvement and ties to the community." The Appellate Division required as part of defendant's release that "defendant must report to pretrial detention as frequently as necessary to determine his compliance with restraining orders prohibiting him from having any contact with the victim or her family .... [and] must surrender his passport." The Court granted leave to appeal. 230 N.J. 349, 350 (2017).

          HELD: The proper standard of appellate review of pretrial detention decisions is whether the trial court abused its discretion by relying on an impermissible basis, by relying upon irrelevant or inappropriate factors, by failing to consider all relevant factors, or by making a clear error in judgment. Here, the trial court abused its discretion.

         1. To determine the appropriate standard of appellate review in the absence of an "explicit statutory command, " a court first must "ask whether the 'history of appellate practice' yields an answer. Second, at least where 'neither a clear statutory prescription nor a historical tradition exists, ' [a court asks] whether, 'as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.'" McLane Co. v. EEOC, 581 U.S.___, 137 S.Ct. 1159, 1166-67 (2017). Although the CJRAdoes not explicitly set forth the appropriate scope of appellate review of trial court detention decisions, the pointed use of the permissive "may" in those provisions establishes the trial court's significant discretion in making pretrial detention decisions and suggests that deferential review is appropriate, (pp. 14-20)

         2. Turning to the first inquiry under the McLane test, there is further support for the abuse of discretion standard in the history of appellate practice. Since the 1800s, appellate courts have acknowledged that bail determinations were discretionary. Over many decades, appellate courts have reviewed many bail determinations for abuse of discretion. There is no indication that the Legislature intended to change that practice under the new system. As to the second part of the test in McLane, courts have long deferred to trial courts' factual determinations because they hear and see the witnesses and have the "feel" of the case. With respect to detention determinations, trial courts regularly handle detention motions under the CJRA and will continue to develop expertise in the CJRA's application. In C.W., the panel concluded that an abuse of discretion standard should apply to detention determinations under the CJRA, and correctly enunciated the standard. 449 N.J. Super, at 235, 252-55. To determine whether the trial court abused its discretion in ordering defendant's detention, the Court reviews whether the decision "rest[s] on an impermissible basis, " "was based upon a consideration of irrelevant or inappropriate factors, " "fail[ed] to take into consideration all relevant factors and whe[ther] [the] decision reflects a clear error in judgment." Id. at 255. (pp. 20-25)

         3. The State's burden to overcome the statutory presumption of release is substantial because "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." State v. Robinson. 229 N.J. 44, 68 (2017). The CJRA specifically delineates the kind of evidence that the court may consider in making a detention decision. Defendant's characteristics as he stood before the court, pursuant to N.J.S.A. 2A: 162-20, were as follows: he was fifty years of age; he had a PSA score of 1/6-the lowest score-for both "[f]ailure to appear" and "[n]ew criminal activity"-he was gainfully employed, had no criminal history, had no violence flags, and had strong ties to the community including the support of his adoptive parents and his relationship with his biological children; he was born in Canada, but adopted shortly thereafter; defendant has dual U.S.-Canadian citizenship, (pp. 25-28)

         4. The nature and circumstances of the offense are pertinent to whether the statutory presumption of release has been overcome. However, the court based its detention decision almost entirely upon the offense charged, even though that charge does not carry a presumption of detention. See N.J.S.A. 2A:162-18(b). The court also relied on unsupported conclusory statements by the prosecutor to establish risk of obstruction even though there was no evidence of defendant's obstructive conduct. As defense counsel noted, defendant lived in the same home as the victim "until a couple of years ago" and "no further problems apparently . . . have been alleged." The court based defendant's risk of flight upon his dual U.S.-Canadian citizenship even though the evidence presented at the detention hearing was that defendant had "lived in New Jersey [for] almost his entire life" and that defendant has no ties to Canada because he has no contact with his biological mother and does not know where she lives. In summary, the trial court, in ordering defendant detained, failed to properly consider defendant's characteristics as he stood before the court. Furthermore, the trial court relied upon general, conclusory statements put forward by the prosecutor at the detention hearing. Because the court's detention decision does not set forth articulable facts supporting its exercise of judicial discretion, it is not entitled to deference. The trial court's detention decision constituted an abuse of discretion. Remand is required because trial courts are better positioned to determine conditions of release, (pp. 28-31)

         The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED to the trial court for a hearing to determine the appropriate conditions of release.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ- VINA, and TIMPONE

          OPINION

          JUSTICE SOLOMON JUDGE.

         In this appeal, we determine the proper standard for appellate review of pretrial detention decisions under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. After doing so, we must apply that standard to the facts of the present appeal.

         We conclude that the proper standard of appellate review is whether the trial court abused its discretion by relying on an impermissible basis, by relying upon irrelevant or inappropriate factors, by failing to consider all relevant factors, or by making a clear error in judgment.

         Here, we affirm the Appellate Division's judgment reversing the trial court's decision to detain defendant. We do so because the trial court relied on inappropriate factors and failed to consider all relevant factors in finding that there was sufficient evidence before the court to overcome the presumption of defendant's release.

         I.

         The facts and procedural history are culled from the record of defendant's detention hearing.

         In March 2017, law enforcement obtained an arrest warrant for defendant S.N.[1] for acts alleged to have been committed against his stepdaughter[2] in 2012. In a complaint-warrant, the State charged defendant with first-degree aggravated sexual assault on a person under the age of thirteen, N.J.S.A. 2C:14-2(a)(1); fourth-degree lewdness, 2C:14-4(b)(1); and second-degree child endangerment, N.J.S.A. 2C:24-4(a).[3] The affidavit of probable cause in support of the complaint-warrant stated that the victim told a staff member at her school that defendant came into her bedroom and sexually assaulted her approximately fifty times while she was in the sixth and seventh grades. The affidavit also disclosed that, in 2015, the victim told a friend that defendant had "touched her in a sexual manner." In addition, the State prepared a preliminary law enforcement incident report (PLEIR), which stated that "defendant was known to the victim as [f]amily."

         Following defendant's arrest, a pretrial services officer prepared a Public Safety Assessment (PSA)[4] that rated defendant a 1 out of 6 -- the lowest possible risk score -- for both failure to appear and new criminal activity. The PSA noted that defendant did not have any prior criminal history or failures to appear, but the current charges pending against defendant stemmed from a violent offense. Despite the low risk scores, the PSA concluded "No Release Recommended."

         The State moved for pretrial detention, pursuant to N.J.S.A. 2A:162-19. In support of its pretrial detention motion, the prosecution certified that the charged crime could subject defendant to "an ordinary or extended term of life imprisonment, "[5] there is a "serious risk" that "defendant will not appear in court, " and "defendant will pose a danger to any other person or the community." In addition, the certification stated, "[d]efendant's victim is his step-daughter. Defendant is a risk to harm and intimidate his victim and her mother and to obstruct justice by interfering with the investigation and witnesses. Defendant is a risk of flight because his biological mother and sister live in Canada."

         At the detention hearing, the State submitted the affidavit of probable cause in support of the complaint-warrant, the PLEIR, [6] and the PSA. The prosecutor claimed that the PSA did not take into account defendant's dual citizenship or the risk to the victim because "[defendant] knows where she lives. He knows where her mother lives. And the fear is that if he's released, he will harm them physically." Regarding the potential for obstruction, the prosecutor stated that

[t]hese sorts of cases are sensitive in the sense that if a defendant has access to the victim or other family members, we know -- and it's common sense -- that the defendant often tries to obstruct justice by trying to convince family members and other people in the family to say it didn't happen, or put pressure on the victim.

         The State also sought a restraining order to prohibit defendant from having contact with the victim, her mother, and his three biological children (the victim's half-siblings).

         Defense counsel countered that the State did not present clear and convincing evidence to support its detention motion, and that the State's arguments were based on "mere speculation." Defense counsel further noted that defendant had no prior record, including no disorderly persons offenses, had no failures to appear, was gainfully employed, and had the support of his adoptive parents, who live in New Jersey. Regarding defendant's biological mother in Canada, defense counsel stated defendant has not had "telephonic or face-to-face contact with her" and defendant "doesn't even know where she lives." Counsel noted that defendant's biological mother had visited New Jersey "more than a decade ago, " but it "ended in [defendant's] getting a restraining order against her, [and] her being physically removed from his house by the police."

         Further, defense counsel claimed that defendant lived in the same home as the victim "until a couple of years ago" and that "no further problems apparently . . . have been even alleged." Defense counsel also asserted that defendant is involved in the lives of his three biological children and has had "constant contact" with them despite no longer living in the same household.

         The trial court issued an oral ruling at the end of the detention hearing granting the State's motion for pretrial detention and the restraining order. The court found that the State had established probable cause that defendant committed the charged offenses. In making the pretrial detention determination, the judge reviewed the circumstances of the charged offenses, the potential sentence if convicted, defendant's risk of flight in light of his dual U.S. and Canadian citizenship, and the potential for ...


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