February 26, 2019
appeal from Superior Court of New Jersey, Law Division,
Middlesex County, Indictment No. 17-11-1346 in A-3745-17.
appeal from an interlocutory order of Superior Court of New
Jersey, Law Division, Hudson County, Complaint No.
W-2018-3276-0906 in A-0358-18.
Claudia Joy Demitro, Deputy Attorney General, argued the
cause for appellant (Gurbir S. Grewal, Attorney General,
attorney; Claudia Joy Demitro, of counsel and on the briefs).
B. Lasota, Assistant Deputy Public Defender, argued the cause
for respondents (Joseph E. Krakora, Public Defender,
attorney; Laura B. Lasota, of counsel and on the briefs).
Judges Yannotti, Rothstadt and Gilson.
State appeals from orders entered by the Law Division, which
dismissed charges under N.J.S.A. 2C:29-9(a) that defendants
purposely or knowingly disobeyed orders of pretrial release,
entered by judges pursuant to the Criminal Justice Reform Act
(CJRA or the Act), N.J.S.A. 2A:162-15 to -26. We address both
appeals in this opinion. For the reasons that follow, we
State v. McCray
April 16, 2017, Antoine McCray was charged in
complaint-warrant W-2017-1274-2004 with second-degree
robbery, during which force was used and bodily injury
inflicted, in violation of N.J.S.A. 2C:15-1(a)(1). The State
thereafter filed a motion for his pretrial detention pursuant
to the CJRA. After conducting a hearing, the court denied the
State's motion and entered an order dated April 27, 2017,
which stated that McCray was released pretrial subject to
certain non-monetary conditions. One of the conditions was
that defendant "[s]hall not commit any offense during
the period of release."
August 29, 2017, McCray was charged in complaint-warrant
W-2017-0904-1205 with the disorderly persons offense of theft
by unlawful taking, N.J.S.A. 2C:20-3(a); fourth-degree credit
card theft, N.J.S.A. 2C:21-6(c)(1); third-degree identity
theft, N.J.S.A. 2C:21-17(a)(1); and fourth-degree forgery,
N.J.S.A. 2C:21-1(a)(2). He also was charged in
complaint-summons S-2017-1155-1205 with fourth-degree
contempt of court under N.J.S.A. 2C:29-9(a), for violating
the court's April 27, 2017 pretrial release order.
November 16, 2017, a grand jury returned Indictment No.
17-11-1345, which charged McCray with conspiracy to use a
credit card fraudulently, contrary to N.J.S.A. 2C:5-2(a) and
N.J.S.A. 2C:21-6(h), and other offenses. The grand jury also
returned Indictment No. 17-11-1346, charging McCray with
contempt of court under N.J.S.A. 2C:29-9(a) for violating the
pretrial release order. The indictments alleged that he
committed the offenses on or about August 29, 2017.
December 7, 2017, a grand jury returned Indictment No.
17-12-1391, which charged McCray and others with third-degree
conspiracy to use a credit card fraudulently, on or about
August 2, 2017. In addition, on December 13, 2017, a grand
jury returned Indictment No. 17-12-1418, which charged McCray
and another person with several counts of third-degree
conspiracy to use a credit card fraudulently, on or about
August 4, 2017.
February 5, 2018, McCray pled guilty to four counts of
third-degree conspiracy to use a credit card fraudulently,
specifically count four of Indictment No. 17-11-1345, count
three of Indictment No. 17-12-1391, and counts one and three
of Indictment No. 17-12-1418. He also pled guilty to
fourth-degree contempt of court as charged in Indictment No.
plea hearing, McCray provided a factual basis for the pleas.
Regarding the contempt charge, he admitted that the court
previously had entered an order permitting his pretrial
release, and as a condition of his release, he was
"supposed to remain offense free." He also admitted
that he committed the offenses for which he was pleading
guilty while he was on pretrial release.
judge who accepted the plea advised counsel that he had
concerns about the validity of the contempt charge. The judge
stated that on the sentencing date, he would determine
whether to reject the plea to that offense and dismiss the
indictment on the ground that it was "defective as a
matter of law." The judge questioned whether the State
could charge a defendant with contempt under N.J.S.A.
2C:29-9(a) based on a violation of the terms of a pretrial
release order. The judge directed the parties to file briefs
addressing the issue.
judge heard oral argument on April 13, 2018, and filed a
written opinion that day, in which the judge ruled that the
contempt charge must be dismissed. In his opinion, the judge
stated that neither the CJRA nor the court rules implementing
the Act authorize a charge of contempt under N.J.S.A.
2C:29-9(a) as a sanction for violating conditions in a
pretrial release order. The judge also reasoned that the
constitutional protections against double jeopardy preclude
the State from punishing a defendant for violating a
provision in a pretrial release order, based on the
commission of a new offense, and also punishing defendant for
committing that offense.
judge entered an order dated April 13, 2018, dismissing the
indictment with prejudice. The judge denied the State's
motion for a stay of the order pending appeal, and later
sentenced defendant on the other charges to which he pled
guilty. The judge imposed concurrent terms of four years of
incarceration, each without a period of parole ineligibility.
The State's appeal followed.
State v. Gabourel
Sahaile Gabourel was charged under complaint-warrant
W-2018-2988-0906 with seven charges related to the possession
and distribution of a controlled dangerous substance (CDS),
including second-degree possession of a CDS with intent to
distribute within 500 feet of a public park, N.J.S.A.
2C:35-7.1(a); and third-degree possession of a CDS with
intent to distribute within a school zone, N.J.S.A.
affidavit of probable cause, an officer of the Jersey City
Police Department (JCPD) stated that on July 10, 2018, he
observed Gabourel distribute heroin to another individual, in
exchange for currency. The officer arrested Gabourel and
found that he was in possession of twenty-nine glassine bags
11, 2018, the State filed a motion under the CJRA for
Gabourel's pretrial detention. The judge conducted a
hearing on July 16, 2018, and denied the State's motion.
The judge stated that he was "going to put a curfew in
place" and instructed Gabourel on this condition. The
judge told Gabourel he had to remain in his residence from
6:00 p.m. to 6:00 a.m. The judge stated, "If you go out
you're violating the terms of your release." The
judge asked Gabourel if he understood those terms, and he
judge entered an order dated July 16, 2018, ordering
Gabourel's release on his own recognizance, subject to
certain conditions. Among other conditions, the order stated
that he must report to Pretrial Services telephonically and
in person once every other week, and that Gabourel
"[s]hall comply with the following curfew:
23, 2018, at 8:09 p.m., two officers of the JCPD observed
Gabourel standing on a street corner in Jersey City, in
violation of the curfew. The officers apparently were aware
of the curfew requirements of the pretrial release order, and
determined that Gabourel was violating the order. The
officers stopped and arrested him. He had three Percocet
pills in his possession.
was charged in complaint-warrant W-2018-3276-0906 with
fourth-degree contempt of court, N.J.S.A. 2C:29-9(a); and
possession of a prescription legend drug, N.J.S.A.
2C:35-10.5(a)(1), a disorderly persons offense. The State
then filed a motion pursuant to N.J.S.A. 2A:162-24 for
revocation of Gabourel's pretrial release.
judge thereafter conducted a hearing on the State's
motion. The judge found that Gabourel had disobeyed the
pretrial release order by violating the curfew. The judge
also found that the State met its burden for revocation of
defendant's pretrial release. The judge found, however,
that the CJRA did not permit a contempt charge for violating
the pretrial release order. The judge entered an order dated
August 9, 2018, dismissing the charge. We thereafter granted
the State's motion for leave to appeal.
appeal, the State argues that the trial court judges erred by
dismissing the contempt charges against defendants. The State
contends the judges erred by finding that the CJRA and the
court rules implementing the Act do not permit the State to
charge a defendant with contempt under N.J.S.A. 2C:29-9(a) if
the defendant violates a pretrial release order.
are presumed valid and should be dismissed only upon the
clearest and plainest ground and only if palpably
defective." State v. Schenkolewski, 301
N.J.Super. 115, 137 (App. Div. 1997) (citing State v.
N.J. Trade Waste Ass'n, 96 N.J. 8, 8-19 (1984);
State v. Weleck, 10 N.J. 355, 364 (1952); State
v. Engel, 249 N.J.Super. 336, 359-60 (App. Div. 1991)).
"A trial court . . . should not disturb an indictment if
there is some evidence establishing each element of the crime
to make out a prima facie case." State v.
Morrison, 188 N.J. 2, 12-13 (2006) (citing State v.
Hogan, 144 N.J. 216, 236 (1996); State v.
Vasky, 218 N.J.Super. 487, 491 (App. Div. 1987)).
not reverse an order dismissing an indictment unless shown to
be a mistaken exercise of discretion. State v.
Warmbrun, 277 N.J.Super. 51, 59-60 (App. Div. 1994)
(quoting N.J. Trade Waste Ass'n, 96 N.J. at
18-19). "However, if a trial court's . . . decision
is based upon a misconception of the law," we owe that
"decision no particular deference." State v.
Lyons, 417 N.J.Super. 251, 258 (App. Div. 2010) (citing
Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
it is undisputed that judges had entered orders pursuant to
the CJRA releasing defendants pretrial on conditions. Among
other conditions, McCray was ordered not to commit a new
offense while on release, and Gabourel was ordered to comply
with a curfew. Thereafter, McCray committed new offenses and
Gabourel violated the curfew. Thus, the State had prima facie
evidence that defendants purposely or knowingly disobeyed
judicial orders. See N.J.S.A. 2C:29-9(a).
State contends that the trial judges erred by finding that
the CJRA does not permit the State to charge defendants with
contempt under N.J.S.A. 2C:29-9(a) for violating a condition
of pretrial release. In response, defendants argue that the
plain language of the CJRA and its legislative history show
that the Legislature rejected contempt as a remedy for
violating a condition of release.
overriding goal of all statutory interpretation 'is to
determine as best we can the intent of the Legislature, and
to give effect to that intent.'" State v.
S.B., 230 N.J. 62, 67 (2017) (quoting State v.
Robinson, 217 N.J. 594, 604 (2014)). We first consider
the language of the statute because the statutory language is
"the best indicator" of legislative intent.
State v. Gandhi, 201 N.J. 161, 176 (2010) (citing
DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
interpret the words of a statute in accordance with
"their ordinary meaning and significance."
DiProspero, 183 N.J. at 492 (citing Lane v.
Holderman, 23 N.J. 304, 313 (1957)). We also must
consider the relevant provisions of the statute "in
context with related provisions so as to give sense to the
legislation as a whole." Ibid. (citing
Chasin v. Montclair State Univ., 159 N.J. 418,
the plain language chosen by the Legislature 'leads to a
clearly understood result' that is consistent with the
legislative objectives of the statute and its context with
related provisions, we apply the law as written."
Robinson, 217 N.J. at 604 (first quoting State
v. Hudson, 209 N.J. 513, 529 (2012); and then citing
State v. Rangel, 213 N.J. 500, 509 (2013)). We may
not "rewrite a plainly written" statute "or
presume that the Legislature intended something other than
that expressed by way ...