Superior Court of New Jersey, Law Division, Cape May
Mazur, Assistant Prosecutor, for the plaintiff (Jeffrey H.
Sutherland, Cape May County Prosecutor, attorney).
J. Rodgers, attorney for defendant.
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
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.
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
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
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
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.
counsel for defendant had no comment regarding the
State's probable cause proffer at the time of 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.
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.
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.
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.
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.
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 ...