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State v. W.A.

Superior Court of New Jersey, Law Division, Cape May

February 7, 2019

W.A., Defendant.

          Julie Mazur, Assistant Prosecutor, for the plaintiff (Jeffrey H. Sutherland, Cape May County Prosecutor, attorney).

          Joseph J. Rodgers, attorney for defendant.

          DONOHUE, J.S.C.

         This case presents the court with an issue of first impression in New Jersey. Namely, whether, after a defendant has been detained pretrial, a later defense attack on the State's detention hearing proffer can be sufficient to reopen the detention hearing.

         The court finds that a defendant may not reopen a detention hearing in order to present more developed arguments to mount a late attack on the State's proffer regarding probable cause and the court's finding of probable cause, where the bases for those arguments were known to defendant at the time of the detention hearing. This is especially true where a grand jury has returned an indictment between the time of the detention hearing and the filing of the motion to reopen the detention hearing.

         I. BACKGROUND

         Defendant, W.A., was arrested May 25, 2017, on a complaint-warrant and charged with two (2) counts of 1st degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(1) and two (2) counts of 2nd degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a(1). On May 26, 2017, the State moved to detain defendant pending trial in accordance with the Criminal Justice Reform Act ("the Act"), N.J.S.A. 2A:162-15 to -26. Defendant's detention hearing was scheduled to be heard on May 31, 2017, but was subsequently postponed due to the unavailability of defense counsel. On June 6, 2017, a pretrial detention hearing was held pursuant to the Act to determine defendant's custodial status pending trial.

         On June 6, 2017, this court ordered defendant detained pending trial. On the Public Safety Assessment ("PSA"), defendant scored two "2" on the failure to appear risk scale and a three "3" on the risk of new criminal activity scale, both on a scale of 1 to 6. No "elevated risk of violence flag" was present. The recommendation of the PSA to the court was "No Release Recommended."

         At the probable cause phase of the detention hearing, the State's proffer outlined the circumstances surrounding defendant's arrest for aggravated sexual assault and endangering the welfare of a child. The State proffered the complaint-warrant, affidavit of probable cause and Preliminary Law Enforcement Incident Report (PLEIR) as well as details of witness statements and police reports in support of probable cause and detention. The State detailed the nature of defendant's relationship with the then-minor victims and explained how defendant was in a relationship with the two (2) female victims' grandmother. The State alleged that defendant used his relationship as a quasi-grandfather to the minor victims to commit acts of sexual assault on separate occasions approximately fourteen (14) years earlier. In support of probable cause, the State noted that both victims individually corroborated the nature of the sexual assaults in addition to specific behavior by defendant. The State further highlighted that defendant's statements were consistent with the victims' statements regarding the time and place of the parties' interactions with each other.

         The State also proffered portions of one victim's statement in which she described the particular characteristics of defendant's penis. Specifically, the State noted that one victim described defendant's penis as having a "very dark" shaft and a tip that was "not quite as dark." The State argued that the affidavit of probable cause indicated that the victim's description was corroborated by comparison to a photograph of defendant obtained via search warrant on May 25, 2017.

         Initial counsel for defendant had no comment regarding the State's probable cause proffer at the time of the detention hearing.

         The court found that, "the State established probable cause that defendant committed continuing acts of sexual assault upon two victims on multiple occasions over a period of time when each victim was less than thirteen (13) years old." Satisfied with the State's probable cause proffer, the court moved to the detention phase of the hearing.

         In support of pretrial detention, the State argued that defendant was facing first degree charges, the offenses were sexual in nature and the victims were minors. The State further argued that defendant represents a continuing danger to the victims and the community. While the offenses occurred fourteen (14) years prior, the State maintained that defendant represents a continuing threat based on his pattern of gaining the trust of and eventually exploiting his victims. The State again noted that both victims separately corroborated this pattern of exploitation. The State further argued that the presence of weapons in defendant's home should be considered as a potential danger to the community given the gravity of the charges.

         Regarding defendant's risk of flight, the State cited one previous failure to appear in Florida, an outstanding warrant, also in Florida, for a violation of probation and statements from the victims' family members indicating defendant is more likely than not to move away.

         In response, the defense argued that defendant is not a flight risk based on his status as a Cape May County resident for thirty-four (34) years and his ties to the area. Counsel also urged the court to consider the dangers of detention and argued that defendant has been threatened and attempted to harm himself while incarcerated. Defendant further argued that pretrial release with conditions of electronic monitoring, restrictions on computer use and restrictions on contact with victims and family members would assure defendant's appearance in court and eliminate risk to the alleged victims or the community.

         After considering the nature and circumstances of the offenses charged, the weight of the evidence against defendant, the recommendation of the PSA and other factors, this court found that no conditions or combination of conditions could ensure defendant's appearance in court and the safety of the victims and community.

         Ultimately, this court found that:

Based on the nature of the offenses, defendant represents a danger to the victims and others. There is well-established probable cause to believe that defendant committed sexual assault by digital penetration and forced touching upon the young female victims. Defendant represents a clear, substantial and continuing threat to the community as someone who appears capable of committing such acts. The court is of the firm belief, based upon the evidence presented by the State, including the alleged corroborative statements of the defendant and the photographs of defendant's penis matching the description provided by a victim, that defendant represents such a continuing threat to the ...

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