State of New Jersey v. C.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2415-16T7

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
March 21, 2017
v. APPELLATE DIVISION

C.W.,1

Defendant-Respondent.
_____________________________

Argued March 13, 2017 – Decided March 21, 2017

Before Judges Sabatino, Nugent and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. W-
2017-000015-1516.

Samuel J. Marzarella, Chief Appellate
Attorney, argued the cause for appellant
(Joseph D. Coronato, Ocean County
Prosecutor, attorney; Mr. Marzarella, of
counsel; John C. Tassini, Assistant
Prosecutor, on the briefs).

Laura B. Lasota, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Ms. Lasota, of counsel and on the
briefs).

1
We use initials to protect the identity and privacy of the
alleged victim, a minor, who resides in close proximity to
defendant.
 Alexander Shalom argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (American Civil Liberties Union of
New Jersey, attorneys; Mr. Shalom, Edward L.
Barocas and Jeanne LoCicero, on the brief).

Claudia Joy Demitro, Deputy Attorney
General, argued the cause for amicus curiae
Office of Attorney General (Christopher S.
Porrino, Attorney General, attorney; Ms.
Demitro, of counsel and on the briefs).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This appeal by the State from a denial of its motion for

defendant C.W.'s pretrial detention presents several legal

issues arising under the new Bail Reform Act, N.J.S.A. 2A:162-15

to -26 ("the Act"), which became effective on January 1, 2017.

The novel issues posed to us include: (1) the proper

standards of appellate review for assessing a trial court's

decision to detain or release a defendant under the Act; (2) the

analytic impact of a defendant's juvenile record, a facet that

is not numerically reflected in a defendant's risk-assessment

scores; (3) the significance to the detention analysis of a

defendant's tier classification under Megan's Law; and (4)

whether a recommendation by the Judiciary's Pretrial Services

Program to detain a defendant creates, under the recently-

enacted Rule 3:4A(b)(5), a rebuttable presumption against

release that such a defendant must overcome.

2 A-2415-16T7
 For the reasons amplified in this opinion, we construe the

Act and the associated provisions within Rule 3:4A as follows.

First, we adopt the agreed-upon position of the parties and

the amici that the scope of appellate review of a detention

decision generally should focus on whether the trial court

abused its discretion, but de novo review applies with respect

to alleged errors or misapplications of law within that court's

analysis.

Second, we conclude that a defendant's prior history of

juvenile delinquency and probation violations is a permissible –

and at times especially significant – consideration in the

detention analysis. Such consideration of a defendant's

juvenile record is authorized by the Act, as it is logically

subsumed within the factors set forth in N.J.S.A. 2A:162-

20(c)(1).

Third, in appropriate cases, a detention analysis under the

Act should afford considerable weight to the tier classification

of a defendant who has previously committed a sexual offense

subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, and whose

dangerousness and risk of re-offending have been evaluated on a

Registrant Risk Assessment Scale ("RRAS"). Such a Megan's Law

tier classification falls within the broad terms of N.J.S.A.

2A:162-20(c)(1). The Megan's Law tiering is particularly

3 A-2415-16T7
salient where a defendant has been classified in "Tier 3"

corresponding to the highest risk of re-offense, and where the

pending charges involve new sexual offenses.

Fourth, we reject the argument that a Pretrial Services

recommendation to detain a defendant creates, under Rule

3:4A(b)(5), a rebuttable presumption against release that a

defendant must overcome. However, as the Rule expressly states,

such a recommendation to detain may be, but is not required to

be, relied upon by the court as "prima facie evidence" to

support detention.

Notably in this regard, the Acting Administrative Director

of the Courts recently announced in a March 2, 2017 guidance

memorandum2 that the standard "two-part" format of

recommendation, which had been used by the Pretrial Services

Program for the most serious cases (and which was used in this

case), is being discontinued. That memorandum further clarified

that the two-part format was not intended by the Judiciary to

convey a recommendation that equally valued the options of (1)

detention or (2) release upon stringent conditions. Instead,

the two-part format was meant to convey that detention was the

2
See Acting Admin. Dir. of the Courts Memorandum, "Criminal
Justice Reform – Amendment of the Decision Making Framework to
Clearly Indicate No Release Recommended for the Highest Level of
Risk Defendant" (March 2, 2017).

4 A-2415-16T7
preferred option, but if the trial court rejected that primary

recommendation, then stringent conditions of release

alternatively should be imposed.

Lacking the guidance of the Administrative Director's

recent clarifying memorandum, as well as subsequent published

case law on legal issues arising under the new statute 3, the

trial court rejected the State's motion to detain C.W. Instead,

the court released him on specified conditions, which it made

more stringent after learning of defendant's close proximity to

the residence of the minor.

The trial court found that the State had not met its burden

for detention under the Act. The court reached that conclusion

in spite of defendant's troubling prior record of sexual

wrongdoing as a juvenile, his two violations of probation that

caused the Family Part to order him confined for three years in

a juvenile detention facility, his highest-level Tier 3

classification under Megan's Law, and his close proximity to the

minor's residence.

3
See State v. Ingram, ___ N.J. Super. ___ (App. Div. 2017)
(generally allowing the State to establish probable cause at the
detention hearing through a written proffer rather than through
testimony); State v. Robinson, ___ N.J. Super. ___ (App. Div.
2017) (clarifying the State's discovery obligations in
connection with the detention proceeding), leave to appeal
granted, ___ N.J. ___ (2017).

5 A-2415-16T7
 The trial court appears to have afforded significance to

defendant's low numerical risk-assessment scores on the failure-

to-appear and new criminal activity indices. However, both of

those scores do not take into account the fact that defendant

has been confined in a juvenile facility for several years. In

addition, the trial court's decisions do not explain

specifically why it rejected the portion of the Pretrial

Services recommendation of detention, despite the Act's

requirement for such a written explanation.

We further note that there are material informational gaps

in the existing record, such as the details relating to

defendant's two violations of probation and also his Megan's Law

classification. These gaps impede a full and appropriate

consideration of the issues in this case as well as our own

appellate review.

For these and other reasons explained in this opinion, we

remand this matter to the trial court for expeditious

reconsideration of its ruling.

I.

We derive the pertinent facts, in part, from the State's

allegations, mindful that this case is only in the pretrial

phase. Fundamentally, the State contends that defendant C.W.,

who is presently twenty years old, attempted on two different

6 A-2415-16T7
dates in 2016 to engage in sexual activities with a minor

female. The minor reportedly lives nearby defendant and his

parents in Ocean County.4

The Charged Offenses and the State's Investigation

According to the State, in May 2016, defendant, who was

then age nineteen, approached the minor, who was then eleven

years old.5 He offered to give her a video game system if she

allowed him to touch her and if she would touch his erect penis.

The girl declined defendant's proposal. She ran home and

reported the incident to her brother.

Several months later in November 2016, defendant (who had

turned twenty over the summer) contacted the minor through a

social media message. He asked her to send him photographs of

her wearing a bikini. She did not respond to him.

On November 14, 2016, the minor and her mother reported the

two incidents to the police. Officers from the Special Victims'

Unit of the Ocean County Prosecutor's Office interviewed the

minor on December 1, 2016. The police also took tape-recorded

4
The record supplied to us does not clearly substantiate whether
the minor lives immediately next door to defendant, but it is
uncontested that she resides approximately 100 feet from him.
5
The minor reported that defendant had approached her after she
got off a school bus, whereas defendant stated to the police
that he had approached her outside of his residence. We need
not resolve here this discrepancy about the exact location.

7 A-2415-16T7
statements from the minor's mother and brother, both of whom

provided information consistent with her reported allegations.

Continuing with the investigation, detectives interviewed

defendant at a local police station on January 19, 2017. 6 In a

video-recorded statement, defendant admitted to the detectives

that he had asked the minor for bikini photos. He further

admitted that, on another occasion, after watching pornographic

videos and obtaining an erection, he opened his front door, saw

the minor, and asked her to touch his erect penis.

The police arrested defendant after his interview. In a

complaint-warrant, the State charged him with second-degree

criminal attempt to sexually assault a child of less than

thirteen years of age, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:14-

2(b), as well as third-degree endangering the welfare of a child

by attempting to engage in sexual conduct to impair or debauch

that child's morals, N.J.S.A. 2C:24-4(a)(1).

The Pretrial Services Risk Assessment and Recommendation

Using defendant's fingerprints, the police carried out the

Act's new automated pretrial risk-assessment process, pursuant

to N.J.S.A. 2A:162-25. See N.J. Attorney General Law

6
Defendant does not allege in this interlocutory appeal that his
admissions were coerced or that the police failed to warn him of
his right to remain silent in compliance with Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

8 A-2415-16T7
Enforcement Directive No. 2016-6 ("Directive No. 2016-6"), at

15-16 (Oct. 11, 2016) (detailing the process). The automated

process gathers information about defendants from various law

enforcement and Judiciary databases, including the State Police

criminal case history system, the PROMIS/GAVEL criminal

database, the MACS municipal court database, and other sources.

The information derived from these sources is used to address

the following nine risk factors:

(1) defendant's age at current arrest;

(2) current violent offense, or current
violent offense by a defendant twenty years
old or younger;

(3) pending charge(s) at the time of arrest;

(4) prior misdemeanor7 convictions;

(5) prior felony convictions or any prior
convictions (misdemeanor or felony);

(6) prior violent convictions;

(7) prior failures to appear in the past two
years;

(8) prior failures to appear older than two
years; and

7
The risk assessment tool has been developed for the Judiciary
by a private foundation. Variations of the tool have been used
in other jurisdictions, some of which, unlike New Jersey, use
the categorical terms "felony" and "misdemeanor." See Laura &
John Arnold Foundation, PSA Risk Factors and Formula, 2 (2012)
http://www.arnoldfoundation.org/wp-content/uploads/PSA-Risk-
Factors-and-Formula.pdf.

9 A-2415-16T7
 (9) prior sentences leading to
incarceration.

Notably, the automated process does not account for a

defendant's juvenile history. Hence, the numerical scores it

generates do not reflect adjudications of delinquency for

serious violent crimes, juvenile violations of probation, or

failures of a juvenile to appear at proceedings. Directive No.

2016-6, supra, at 29-30.8

Using an algorithm, the automated process generates a

Public Safety Assessment ("PSA"), i.e., a risk profile designed

to inform the trial court of the likelihood, on a scale of one

to six, that defendant, if released before trial, would engage

in a New Criminal Activity ("NCA") or Fail to Appear ("FTA") at

future court events. Id. at 27. The PSA has also been designed

to include a "flag" if there is a statistical likelihood that

the defendant would engage in a New Violent Criminal Activity

("NVCA"). Ibid.

A defendant's NCA and FTA scores are then factored into the

Judiciary's approved Decision-Making Framework ("DMF"). The DMF

8
The automated process also does not account for: (1) facts
pertaining to the present offense indicating that a defendant is
especially dangerous; (2) the strength of the State's case; (3)
pending charges or convictions from another state; or (4) a
defendant's involvement with a violent street gang or organized
crime, drug dependence, or mental illness. See Directive No.
2016-6, supra, at 28-29.

10 A-2415-16T7
attempts to identify the recommended level and type of

conditions and intervention or monitoring services needed to

manage the risks posed by defendant if he were released.9

At the time of C.W.'s detention hearing, and prior to the

Acting Administrative Director's March 2, 2017 clarifying

memorandum, the six possible DMF recommendations were: (1)

release on own recognizance ("ROR"); (2) release with pretrial

monitoring level ("PML") 1; (3) PML 2; (4) PML 3; (5) PML 3 +

EM/HD (Electronic Monitoring/Home Detention); or (6) Release Not

Recommended. The "Release Not Recommended" category also

contained the wording, "If Released, PML3 + EM/HD."10

Here, the one-page Pretrial Services report reflected that

defendant was twenty years old, and was charged with a violent

offense. It further indicated that he had no pending charge at

the time of his arrest; no prior indictable or disorderly

persons adult convictions; no prior violent adult convictions;

9
Other considerations within the DMF include: (1) the presence
or absence of an NVCA flag; (2) whether any of the current
offenses were violent; (3) whether defendant was currently
charged with escape, murder, sexual assault, robbery, or
carjacking; and (4) whether the currently charged offenses
exposed defendant to parole ineligibility under the No Early
Release Act, N.J.S.A. 2C:43-7.2 ("NERA").
10
According to the March 2, 2017 clarifying memorandum, the DMF
and resulting Pretrial Services recommendation will now simply
read "No release recommended" for the highest-risk defendants.
"Amendment of the Decision Making Framework", supra.

11 A-2415-16T7
no prior failure to appear pretrial; and no prior sentence

leading to incarceration.

Based on this information, defendant was rated by Pretrial

Services with a FTA score of one, (i.e., the lowest possible

risk for failing to appear), and an NCA score of two, (i.e., the

next lowest possible risk for engaging in new criminal

activity). Defendant was not "flagged" for new violent criminal

activity.

Notwithstanding defendant's low FTA and NCA scores, the

recommendation Pretrial Services presented to the trial court

was "Release Not Recommended. If Released, Weekly Reporting +

HD/EM." The document contained no elaboration on how that

recommendation was generated.11

11
Instructional slides created by the developers of the PSA
tool, which have been supplied to us by amicus American Civil
Liberties Union ("the ACLU") counsel without objection, indicate
that the DMF process should determine whether a defendant's
pending charges involve certain offenses "in which the majority
of the time a recommendation of preventative detention would be
appropriate regardless of the risk assessment results." Those
offenses are escape, murder, aggravated manslaughter,
manslaughter, aggravated sexual assault, sexual assault,
robbery, or carjacking. The slides also call for a similar
recommendation if the PSA resulted in an NVCA flag and one of
the current offenses is violent.

Defense counsel and the ACLU argue that these categories, which
would include defendant because of the charge of attempted
sexual assault, routinely produce an "automatic" and computer-
generated Pretrial Services recommendation for detention. We do
not have enough information in this record to evaluate whether
(continued)

12 A-2415-16T7
 As the Prosecutor and the Attorney General stress,

defendant has a significant prior juvenile record that was not

taken into account numerically in his PSA. Specifically, in

August 2010, he was adjudicated delinquent for acts that if

committed by an adult would constitute second-degree attempted

sexual assault and third-degree endangering the welfare of a

child, acts which he committed in July 2009. Other charges

were dismissed. He was initially ordered to serve three years

of probation, and directed to register as a sex offender under

Megan's Law. The record does not provide any further details

concerning these prior offenses.

Thereafter, defendant was charged with violating probation

on two occasions, once in December 2012 and again in February

2013. The record on this appeal does not disclose the nature of

those separate violations, which were concurrently adjudicated

in the Family Part. However, they apparently were sufficiently

serious to cause the court to sentence him in April 2013 to

three years of confinement at the New Jersey Training School, an

(continued)
that characterization is correct, and neither the Prosecutor nor
the Deputy Attorney General at oral argument knew if it were
true. In any event, that particular nuance of the DMF process
need not be ascertained or evaluated in this opinion, although
counsel are free to develop the record on the subject on remand
if they so choose.

13 A-2415-16T7
all-male juvenile detention center in Jamesburg. The exact date

of his release is not documented in this record.

Defendant's history also reflected that, at some point

after he was adjudicated delinquent, he underwent an evaluation

for Megan's Law purposes because of the sexual nature of his

juvenile offenses. He was classified as a Tier 3 offender, the

highest tier, corresponding to a "great risk of re-offending,"

as opposed to a low or moderate risk (Tiers 1 and 2). See

Attorney General Guidelines for Law Enforcement for the

Implementation of Sex Offender Registration and Community

Notification Laws 17 (Feb. 2007).12

The State's Motion for Pretrial Detention

After defendant was arrested and charged with the present

offenses concerning the minor, the State timely moved for his

pretrial detention under the new law. The pretrial detention

hearing was held in the Criminal Part on January 25, 2017.

12
Pursuant to N.J.R.E. 201, we take judicial notice that
defendant, represented by an assistant public defender, appealed
his tier classification in Docket No. A-4495-15. The appeal was
opposed by an assistant prosecutor. Neither the assistant
public defender nor the assistant prosecutor are counsel
involved in the present pretrial detention appeal. A different
panel of this court issued an order on December 9, 2016,
affirming in part the trial court's June 21, 2016 tier
classification as to certain criteria, but remanding for the
reconsideration of other criteria. Given the sealed nature of
that separate classification matter, we do not discuss here its
substantive content.

14 A-2415-16T7
Defendant appeared at the hearing with counsel, and two

assistant prosecutors appeared for the State.13 No witnesses

testified.

The Prosecutor asserted at the detention hearing that the

State was seeking the detention of defendant because he had been

charged with a second-degree offense to which NERA was

applicable; was believed to be a Tier 3 Megan's Law registrant14

who had violated a condition of his release; and otherwise

presented a danger to the community. The Prosecutor argued that

probable cause had been established, referencing the facts

reported to the police as set forth in a supporting affidavit.

The Prosecutor further emphasized that, during an interview with

police, defendant had admitted to soliciting the minor for

bikini photographs through social media and asking her to touch

his erect penis.

Defense counsel argued at the hearing that probable cause

had not been demonstrated. He contended that a proffer by an

affidavit was not sufficient and that the State had to present

13
For ease of discussion, we refer collectively to the two
assistant prosecutors as "the Prosecutor."
14
Neither the Prosecutor nor defense counsel brought to the
trial court's attention at the detention hearing that the Tier 3
classification had been appealed and remanded.

15 A-2415-16T7
live witnesses.15 He also contended that the State had

improperly failed to provide the defense with all discovery in

its possession, including the recorded statements made by the

minor, witnesses, and defendant.16

The trial court was persuaded that the State should have

provided the defense with the requested discovery, and stated it

was willing to grant an adjournment to allow for that turnover.

However, defense counsel declined an adjournment, as he did not

want to delay matters and have defendant remain in jail for that

reason. Accordingly, the court ruled that probable cause had

been preliminarily established for purposes of the detention

hearing, but indicated it would consider defendant's assertions

of alleged deficiencies in the State's presentation in its final

decision.

Following the court's probable cause ruling, the Prosecutor

announced that the State was relying on defendant's PSA and

criminal case history in support of its motion for detention.

15
This categorical legal argument was subsequently rejected in
Ingram, supra, ___ N.J. Super. ___ (slip op. at 34).
16
The following month in Robinson, supra, ___ N.J. Super. ___
(slip op. at 27), we clarified the State's discovery obligations
in relation to the detention hearing. The Supreme Court has
granted the State's motion for leave to appeal in Robinson, and
the case is awaiting argument before the Court.

16 A-2415-16T7
She urged that defendant should not be released under any

circumstances.

Although the Prosecutor recognized that defendant had low

scores on the PSA, she asserted "this [was] one of the occasions

where the PSA simply [did] not account for the defendant's

[offense] history and/or the serious nature of the crime." She

noted that while defendant has not had the opportunity to amass

an adult criminal record, he does have a significant juvenile

record. In fact, she asserted he committed as a youth sexual

wrongdoing allegedly similar to the current charges. She also

emphasized defendant's probationary sentence, his previous

designation as a Tier 3 Megan's Law offender, his subsequent

violations of probation, and his ultimate commitment to three

years in juvenile detention. Based upon his history, the

Prosecutor maintained that there was a high risk that defendant

would not comply with release conditions and would, once again,

re-offend.

Defense counsel responded that the PSA, on which defendant

had received very low scores, was a reliable "sanitized

assessment" of his actual history. Counsel acknowledged, as an

aside and without any further comment, that defendant did have

"one juvenile conviction [sic]" that was not accounted for by

the PSA scores.

17 A-2415-16T7
 Defense counsel further argued that his client not only

must be presumed innocent, but also should be given the

opportunity under the new Act to show the court that he could

comply with release conditions while his charges were pending.

Counsel maintained that defendant was not a flight risk because

he had been residing with his parents "for many years now" in

Ocean County, had a girlfriend who was three months pregnant,

and was about to start a job at a local restaurant.

With respect to conditions of release, defense counsel

asserted that defendant was willing to stay away from the minor,

her residence, and school, and also would remain in contact with

counsel and Pretrial Services. He represented that defendant

was presently on medication, receiving counseling, and being

monitored by his parole officer.

The Trial Court's Rulings

After considering these arguments and the written

materials, the trial court issued an oral ruling at the end of

the hearing, denying the State's motion for detention and

instead releasing defendant on several conditions.

Among other things, the court observed in its oral decision

that defendant has "roots in the community," "prospects of

employment," and "ties . . . to [the] area." The court further

noted that defendant had "no failure to appear in the past two

18 A-2415-16T7
years," and "no prior sentence" for an adult crime. The court

also recognized that defendant is "presumed innocent until

proven guilty," and that he had not been charged with murder or

another offense that would make him presumptively inappropriate

for release under the new statutory scheme.

The trial court did briefly acknowledge that defendant had

a prior juvenile delinquency adjudication for second-degree

sexual assault, had been classified under a Tier 3 pursuant to

Megan's Law, and had apparently "re-offended quickly after he

was released." Nevertheless, the court concluded that the State

had not met its burden by clear and convincing evidence under

the statute to show that no combination of conditions could

reasonably assure defendant's appearance in court and the

protection and safety of the community before trial.

The court denied the State's immediate motion for a stay

for purposes of an emergent appeal. The court then agreed,

without defense objection, to impose all of the conditions the

Prosecutor had requested if release were granted. These

conditions required defendant to: (1) avoid all contact with

the minor and her family; (2) appear for all scheduled court

proceedings; (3) immediately notify Pretrial Services of any

change of address, telephone number, or other contact

information; (4) avoid the commission of any new offenses; (5)

19 A-2415-16T7
report to Pretrial Services telephonically once every other

week, and in person once every other week; (6) remain on home

detention, with electronic monitoring; and (7) comply with his

Megan's Law obligations.

Defendant agreed to abide by these conditions, but inquired

if he was still allowed to go to work. Without waiving its

right to pursue the present appeal, the Prosecutor did not

object to defendant working, provided that he adhere to a strict

schedule and return home after work immediately. It was also

agreed that defendant had to stay at least 500 feet away from

the minor's home.

After dismissing the parties, the court reconvened the

proceeding later that same day, upon learning that the minor

actually lived within 100 feet of defendant's home, and also

that defendant would likely come into contact with minors if he

were to work at the local restaurant. Given this additional

information, the court modified its original ruling. It

determined that, because defendant and the child apparently were

neighbors, he would have to remain inside his home at all times,

except to go to work or to appointments with the advance

permission of Pretrial Services. The court further directed

that defendant would have to find employment at a different

20 A-2415-16T7
location where he would not be likely to come into contact with

minors.

The court issued an order implementing those terms that

same afternoon. The order did not elaborate further on the

court's reasons, but instead cross-referenced the bench ruling.

Hours later, the State filed an application with this court for

permission to file an emergent motion for leave to appeal. We

denied the emergent motion, without prejudice to the State's

right to file a motion for relief in the regular course. The

Supreme Court likewise denied emergent relief.

The State promptly moved for leave to appeal on January 31,

2017. The same day, we issued a sua sponte interim order,

directing the trial court to furnish, as mandated by N.J.S.A.

2A:162-23(a)(2), a written statement of reasons for denying

detention contrary to the Pretrial Services recommendation.

The trial court submitted the written statement of reasons

on February 2, 2017. In that amplification, the trial court

first noted the parties' discovery dispute and the alleged

deficiencies in the State's probable cause presentation. It

then summarized the parties' arguments in support of and against

pretrial detention. The court repeated its conclusion that,

after considering all of the arguments and proofs, the State had

not established its burden to justify detention by clear and

21 A-2415-16T7
convincing evidence. The statement of reasons did not refer to

the Pretrial Services recommendation, but it did again reference

defendant's low PSA scores.

We then granted the State's motion for leave to appeal.

Meanwhile, at our invitation, the Attorney General and the ACLU

each moved for and were granted leave to appear as amicus

curiae.

On appeal, the Prosecutor and the Attorney General urge

that we reverse the trial court's denial of the State's

detention motion. They argue that the trial court abused its

discretion by overlooking or under-valuing important aspects of

this case, including, among other things, defendant's juvenile

history as a sex offender, his violations of probation, his tier

classification under Megan's Law, his very close proximity to

the minor's residence, and the Pretrial Services recommendation

to detain.

Defendant and amicus ACLU argue that the trial court's

decision was reasonable, supported by the record, and consistent

with the terms and objectives of the new law, and should not be

disturbed.

II.

Before delving into the legal issues raised by this appeal,

we begin with a brief overview of the key elements of the Act

22 A-2415-16T7
and the associated Rule 3:4A, the latter which was approved in

August 2016 and became effective with the new statute on January

1, 2017.

The Act signals a momentous change in our State's criminal

justice system. As our colleagues extensively detailed in

Robinson, supra, ___ N.J. Super. ___ (slip op. at 8-10), the Act

is the result of a constitutional mandate by New Jersey voters

to replace the former bail-dependent system with a system

providing defendants with "a right to pretrial release, but

authorizing pretrial detention under certain limited

circumstances." See N.J. Const. art. I, ¶ 11. The Act also

imposes certain speedy trial requirements. See N.J.S.A. 2A:162-

22.

"As codified by the Bail Reform Act, the new system favors

pretrial release and monitoring as the presumptive approach and

limits preventive detention to defendants who actually warrant

it." Robinson, supra, ___ N.J. Super. ___ (slip op. at 8). "By

permitting judges to keep high-risk defendants detained without

bail, and to release with or without conditions those defendants

who pose little risk of flight or of committing another offense,

these constitutional and legislative changes represent a major

reform to criminal justice that will promote public safety and

fairness." Ibid.

23 A-2415-16T7
 Nonetheless, the trial court remains authorized, upon

motion of a prosecutor, to order pretrial detention of a

particular defendant when it finds by "clear and convincing

evidence, that no condition or combination of conditions can

reasonably assure the effectuation of these goals." N.J.S.A.

2A:162-15; accord N.J.S.A. 2A:162-18(a)(1); N.J.S.A. 2A:162-

19(e)(3).

The State may file an application for pretrial detention

when a defendant is charged with, among other things: (1) any

crime of the first or second degree enumerated under NERA17; or

(2) any crime enumerated under N.J.S.A. 2C:7-2(b)(2) (Megan's

Law) or the crime of endangering the welfare of a child under

N.J.S.A. 2C:24-4. See N.J.S.A. 2A:162-19(a)(1) and (4). Under

this same statutory section, the State may also move for

pretrial detention when a defendant is charged with any other

crime for which the prosecutor believes there is a serious risk

that the goals set forth in N.J.S.A. 2A:162-15 cannot be met.

N.J.S.A. 2A:162-19(a)(7).

At the detention hearing required by N.J.S.A. 2A:162-19(c),

if the defendant has not yet been indicted, "the prosecutor

shall [first] establish probable cause that the eligible

17
It is undisputed that defendant, who is charged with a second-
degree offense, meets this predicate requirement.

24 A-2415-16T7
defendant committed the predicate offense." N.J.S.A. 2A:162-

19(e)(2). Probable cause consists of a "well grounded"

suspicion that an offense has been committed. State v.

Sullivan, 169 N.J. 204, 211 (2001). See also Ingram, supra, ___

N.J. Super. ____ (slip op. at 8-9).

Except for when an eligible defendant is charged with a

crime set forth in N.J.S.A. 2A:162-19(b), i.e., murder or any

crime for which the defendant would be subject to an ordinary or

extended term of life imprisonment, the statute imposes a

rebuttable presumption against detention. N.J.S.A. 2A:162-

18(b).18 Hence, in order to prevail on a detention motion in

other offense categories, the State must rebut the presumption

that some amount of monetary bail, non-monetary conditions, or a

combination thereof would reasonably assure (1) the defendant's

appearance in court when required, (2) the protection of the

safety of any other person or the community, and (3) that the

defendant will not obstruct or attempt to obstruct the criminal

justice process. N.J.S.A. 2A:162-18(b).

18
In these other instances, there is a rebuttable presumption
that the eligible defendant "shall be detained." N.J.S.A.
2A:162-19(b) (emphasis added). The defendant can rebut this
presumption by the lesser proof standard of preponderance of the
evidence. N.J.S.A. 2A:162-19(e)(2). Under this same statutory
provision, if the defendant successfully rebuts the presumption,
the prosecutor can still establish grounds for detention by
clear and convincing evidence. Ibid.

25 A-2415-16T7
 The Act further prescribes that the court at a detention

hearing "may take into account" the following information:

a. The nature and circumstances of the
offense charged;

b. The weight of the evidence against the
[presumptively] eligible defendant, except
that the court may consider the
admissibility of any evidence sought to be
excluded;

c. The history and characteristics of the
eligible defendant, including:

(1) the eligible defendant's character,
physical and mental condition, family ties,
employment, financial resources, length of
residence in the community, community ties,
past conduct, history relating to drug or
alcohol abuse, criminal history, and record
concerning appearance at court proceedings;
and

(2) whether, at the time of the current
offense or arrest, the eligible defendant
was on probation, parole, or on other
release pending trial, sentencing, appeal,
or completion of sentence for an offense
under federal law, or the law of this or any
other state;

d. The nature and seriousness of the danger
to any other person or the community that
would be posed by the eligible defendant's
release, if applicable;

e. The nature and seriousness of the risk of
obstructing or attempting to obstruct the
criminal justice process that would be posed
by the eligible defendant's release, if
applicable; and

f. The release recommendation of the
pretrial services program obtained using a

26 A-2415-16T7
 risk assessment instrument under N.J.S.A.
2A:162-25.

[N.J.S.A. 2A:162-20.]

Notably, although Section 20 of the Act does not place any

special emphasis on the PSA, another provision within the Act,

N.J.S.A. 2A:162-16(b)(1), expressly mandates the court "shall

consider the [Pretrial Services] risk assessment and

recommendations on conditions of release before making any

pretrial release decision[.]" (Emphasis added).

We agree with the State that this quoted language within

Section 16 signifies that a trial court may not ignore the

Pretrial Services recommendation in its detention analysis,

although it is not bound to follow it. That interpretation is

consistent with Section 23(a)'s requirement that, if the court

issues an order contrary to the recommendations of Pretrial

Services, the judge "shall provide an explanation in the

document that authorizes the eligible defendant's release."

N.J.S.A. 2A:162-23(a)(2) (emphasis added). As we discuss,

infra, that did not occur here, perhaps due to perceived

ambiguities in the two-part format of the recommendation.

New Rule 3:4A(b)(5), which implements these statutory

facets, instructs that the court:

may consider as prima facie evidence
sufficient to overcome the presumption of
release a recommendation by [Pretrial

27 A-2415-16T7
 Services] established pursuant to N.J.S.A.
2A:162-25 that the defendant's release is
not recommended (i.e., a determination that
"release not recommended or if released,
maximum conditions"). Although such
recommendation by [Pretrial Services] may
constitute sufficient evidence upon which
the court may order pretrial detention,
nothing herein shall preclude the court from
considering other relevant information [in
reaching its detention determination].

[(Emphasis added).]

"After considering all the circumstances, the [Pretrial

Services] risk assessment and recommendations on conditions of

release, and any information that may be provided by a

prosecutor or the eligible defendant, the court shall order that

the eligible defendant" be either detained or released.

N.J.S.A. 2A:162-16(b)(2). A defendant may be released on: (1)

his or her own recognizance; (2) execution of an unsecured

appearance bond; (3) non-monetary conditions; (4) monetary bail;

or (5) a combination of conditions and monetary bail. N.J.S.A.

2A:162-16(b)(2); N.J.S.A. 2A:162-17. Monetary bail can only be

used to reasonably assure the eligible defendant's appearance.

N.J.S.A. 2A:162-17(c)(1).19

19
The court-ordered non-monetary conditions, paraphrased, may
require the defendant to: (1) refrain from committing any
offense during the period of release; (2) avoid all contact with
an alleged victim of the crime; (3) avoid all contact with all
witnesses who may testify concerning the offense; (4) remain in
the custody of a designated person, who agrees to assume
(continued)

28 A-2415-16T7
 With this backdrop in mind, we turn to the discrete issues

presented.

A.

Our first task is to ascertain the appropriate scope of

appellate review of a trial court's order granting or denying

pretrial detention. The Act does not specify a scope of review.

Nor have our two published cases resolved it while examining

other important legal issues under the new law. But see Ingram,

supra, ___ N.J. Super. ___ (slip op. at 37-38) (noting that the

Attorney General had posited an abuse-of-discretion review

(continued)
supervision and to report any violation of a release condition
to the court; (5) maintain employment, or, if unemployed,
actively seek employment; (6) maintain or begin an educational
program; (7) abide by specified restrictions on personal
associations, place of residence, or travel; (8) report on a
regular basis to a designated law enforcement agency, or other
agency, or pretrial services program; (9) comply with a
specified curfew; (10) refrain from possessing a firearm,
destructive device, or other dangerous weapon; (11) refrain from
excessive use of alcohol, or any use of a narcotic drug or other
controlled substance without a prescription by a licensed
medical practitioner; (12) undergo all available medical,
psychological, or psychiatric treatment, including treatment for
drug or alcohol dependency, and remain in a specified
institution if required for that purpose; (13) return to custody
for specified hours following release for employment, schooling,
or other limited purposes; (14) be placed in a pretrial home
supervision capacity with or without the use of an approved
electronic monitoring device; or (15) satisfy any other
condition deemed necessary to reasonably assure the effectuation
of the goals of the Act. N.J.S.A. 2A:162-17(b)(1) and (2).

29 A-2415-16T7
standard, and that the Public Defender had indicated at oral

argument that such a standard "most likely" applied).

Our task has been eased because the parties and the amici

essentially agree that the appropriate general standard of

appellate review is to sustain the trial court's decision unless

it represents an abuse of discretion. However, as the parties

also agree, de novo review must be conducted if the trial court

erred in its application of the law, such as by relying on a

legally impermissible reason, by failing to consider a legally

required factor in the detention calculus, or by failing to

provide adequate reasons for its decision.

Even though we accept counsel's agreement that these are

the appropriate review standards for appeals arising under the

Act, we provide the following discussion for sake of

completeness. We begin with a recognition that the statute

explicitly confers upon defendants a right to appeal an order of

pretrial detention "pursuant to the Rules of Court." N.J.S.A.

2A:162-18(c).20 The appeal "shall be heard in an expedited

manner." Ibid. In addition, the defendant who was denied

release by the trial court "shall be detained pending the

disposition of the appeal." Ibid.

20
See R. 2:9-13 (eff. Jan. 1, 2017) (delineating new rules of
appellate practice specifically to guide detention appeals).

30 A-2415-16T7
 Although the State has no reciprocal statutory right to

appeal decisions granting a defendant's pretrial release, it can

pursue interlocutory review in this court's discretion. The

State may do so through a motion for leave to appeal filed in

accordance with the general requirements of Rules 2:2-3 and 2:5-

6. Indeed, that is the jurisdictional path that led to the

present case being heard by this court, having granted leave to

appeal.

None of the parties or amici support adopting the standards

of review that case law from the circuit courts has deemed

applicable under the federal Bail Reform Act, 18 U.S.C.A. §§

3141 to 3156 (1984), on which the Act was largely based. Like

our own law, the federal statute does not identify the

applicable standard of review. United States v. Perry, 788 F.2d

100, 104 (3d Cir.), cert. denied, 479 U.S. 864, 107 S. Ct. 218,

93 L. Ed. 2d 146 (1986). The circuit courts have been split in

resolving that question.

Three circuit courts have adopted a "clearly erroneous"

standard, i.e., a highly deferential standard much like a

traditional abuse of discretion standard, whereby the detention

order will be sustained if it is supported by the evidence

presented at the hearing. See, e.g., United States v. English,

629 F.3d 311, 319 (2d Cir. 2011); United States v. Rueben, 974

31 A-2415-16T7
F.2d 580, 586 (5th Cir. 1992), cert. denied, 507 U.S. 940, 113

S. Ct. 1336, 122 L. Ed. 2d 720 (1993); United States v. Fortna,

769 F.2d 243, 250 (5th Cir. 1985); United States v. Chimurenga,

760 F.2d 400, 405-06 (2d Cir. 1985); United States v. Williams,

753 F.2d 329, 333 (4th Cir. 1985).

A majority of the circuit courts, however, independently

review detention decisions affording more limited deference to

the district court's ruling. United States v. O’Brien, 895 F.2d

810, 813 (1st Cir. 1990). Under this more stringent standard,

"[i]f upon careful review of all the facts and the trial judge's

reasons the appeals court concludes that a different result

should have been reached, the detention decision may be amended

or reversed." Id. at 814.

Meanwhile, six circuit courts adhering to the "independent"

standard of review specify that factual findings will only be

reversed if they are clearly erroneous. United States v.

Cisneros, 328 F.3d 610, 613 (10th Cir. 2003); United States v.

Portes, 786 F.2d 758, 762 (7th Cir. 1985); United States v.

Hurtado, 779 F.2d 1467, 1470-72 (11th Cir. 1985); United States

v. Maull, 773 F.2d 1479, 1487 (8th Cir. 1985); United State v.

Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985); United States v.

Hazime, 762 F.2d 34, 37 (6th Cir. 1985).

32 A-2415-16T7
 Two other circuits generally hold that the district court's

determination should simply be given deference. United States

v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003); O'Brien,

supra, 895 F.2d at 814; United States v. Delker, 757 F.2d 1390,

1399-1400 (3d Cir. 1985). However, as explained in O’Brien,

supra, 895 F.2d at 813, as a practical matter, this general

deference "to the determination of the trial court in the

context of an independent review typically will mean giving the

greatest deference to purely factual determinations."

The parties and amici in this case eschew these varying

federal approaches. They instead urge that we apply traditional

standards of review that have been used in appeals of bail

decisions in our State.

Historically, the purpose of bail was not to protect the

community from a defendant's future criminal or antisocial

conduct or to inflict punishment, but instead merely to ensure

the defendant's appearance at court proceedings. State v.

Korecky, 169 N.J. 364, 376 (2001); State v. Steele, 430 N.J.

Super. 24, 35-37 (App. Div. 2013), certif. improvidently

granted, 223 N.J. 284 (2014). The setting of bail has been

entrusted to the reasonable and sound discretion of the trial

court, and our appellate courts have generally sustained those

rulings in the absence of a proven abuse of discretion. See,

33 A-2415-16T7
e.g., State v. Fajardo-Santos, 199 N.J. 520, 533-34 (2009);

Korecky, supra, 169 N.J. at 373; Steele, supra, 430 N.J. Super.

at 34-35. The trial court's discretionary decision to impose

non-monetary conditions of release upon a defendant to protect

the public also has been customarily reviewed for an abuse of

that discretion. See, e.g., State v. Johnson, 61 N.J. 351, 364

(1972); Steele, supra, 430 N.J. Super. at 34.

While the concept is difficult to define with precision, an

appellate court "may find an abuse of discretion when a decision

'rest[s] on an impermissible basis' or was 'based upon a

consideration of irrelevant or inappropriate factors.'" Steele,

supra, 430 N.J. Super. at 34-35 (quoting Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002)). An appellate court can

also discern an abuse of discretion when the trial court fails

to take into consideration all relevant factors and when its

decision reflects a clear error in judgment. State v. Baynes,

148 N.J. 434, 444 (1997). Likewise, when the trial court

renders a decision based upon a misconception of the law, that

decision is not entitled to any particular deference and

consequently will be reviewed de novo. See, e.g., State v.

Stein, 225 N.J. 582, 593 (2016); State v. Williams, 441 N.J.

Super. 266, 272 (App. Div. 2015).

34 A-2415-16T7
 A reviewing court generally will give no deference to a

trial court decision that fails to "provide factual

underpinnings and legal bases supporting [its] exercise of

judicial discretion." Clark v. Clark, 429 N.J. Super. 61, 72

(App. Div. 2012). If a trial court has merely catalogued the

evidence and issued an order without sufficiently explaining its

reasoning, such a conclusory approach does not serve the parties

and does not facilitate appellate review. It is vital that the

trial court make the necessary findings and explain its reasons.

See generally, R. 1:7-4; see also Barr v. Barr, 418 N.J. Super.

18, 46 (App. Div. 2011); Barnett & Herenchak, Inc. v. State, 276

N.J. Super. 465, 472 (App. Div. 1994); In re Valley Hosp., 240

N.J. Super. 301, 306 (App. Div. 1990), certif. denied, 126 N.J.

318 (1991).

We concur with counsel that these well-established general

principles of appellate review are sensibly applied in the

context of pretrial detention rulings issued under the Act. The

statutory scheme envisions that judges in the Criminal Part

repeatedly will be called upon to make detention decisions in a

wide array of cases. Over time, those trial judges will

naturally develop considerable expertise in applying the terms

of the Act. As the First Circuit observed in O'Brien, supra,

895 F.2d at 813, "it would unduly intrude on the ability of

35 A-2415-16T7
[trial] courts to render these [pretrial detention] decisions on

a day to day basis if they were subjected to cavalier treatment

by an appellate court with little experience or opportunity to

develop expertise."

The wording of the Act itself lends support to the adoption

of an abuse of discretion review standard. Section 18 states

that the court "may" order release if the State has met its

burden. N.J.S.A. 2A:162-18(a). Furthermore, Section 20

outlines the factors that the trial court "may" consider in

ruling on detention motions. N.J.S.A. 2A:162-20. "The use of

the word 'may' generally conveys that an action is permissive,

not mandatory." Myers v. Ocean City Zoning Bd., 439 N.J. Super.

96, 101 (App. Div. 2015) (citing Harvey v. Bd. of Chosen

Freeholders of Essex Cty., 30 N.J. 381, 391 (1959) (stating

that, absent legislative intent to the contrary, use of "may"

indicates that a provision is permissive, and use of "shall" or

"must" reflects that a provision is mandatory)).

From a policy perspective, the objectives of the new Act in

attaining the expeditious resolution of criminal cases could be

thwarted if this court routinely second-guessed decisions on

pretrial detention motions simply because we personally would

have reached a different result than the trial judge. We surely

do not wish to encourage dissatisfied parties to file appeals

36 A-2415-16T7
having little or no merit on such collateral issues, while the

trial court proceedings are possibly stalled in the meantime and

the parties' resources are diverted to appellate briefing.

Excessive appeals are also bound to interfere with the Act's

speedy trial goals.

That said, we also must remain vigilant that detention

rulings are not simply rubber-stamped, and that the procedural

and substantive requirements of the Act and other legal

principles are honored. In many instances, the pretrial hearing

may entail no witness testimony and no need for credibility

findings by the trial court, to which we ordinarily accord great

deference. State v. Locurto, 157 N.J. 463, 471 (1999). Hence,

we often will be looking at precisely the same paper record

concerning a defendant's risks as the trial court. Even so, our

primary role in appellate correction should be one of assuring

that the law is being followed properly in the trial court. The

traditional standards of review used by our courts in bail cases

will serve that goal.

When conducting appellate review under this largely

deferential standard, we also must bear in mind the evidentiary

standard under the Act that governs the detention ruling.

Where, as here, the charged offenses do not trigger a

presumption of detention pursuant to N.J.S.A. 2A:162-19(b) — as

37 A-2415-16T7
it would in murder and life imprisonment cases — the State must

meet a heavy burden to establish the need for detention by

"clear and convincing evidence." N.J.S.A. 2A:162-18(a)(1). The

drafters of the Act presumably chose that high bar to make

detention the appropriate result for only a limited group of the

most serious cases, where public safety is demonstrably

threatened by a defendant's release, the defendant clearly is

not likely to appear for court, or he or she is likely to

threaten to obstruct the criminal justice process.

The State's burden of establishing clear and convincing

evidence in this context falls somewhere between the ordinary

civil standard of preponderance of the evidence and the criminal

standard of beyond a reasonable doubt. In re Perskie, 207 N.J.

275, 289 (2011). This heightened standard is typically applied

where the evidentiary matters are complex, prone to abuse, error

or injustice, and also where an individual’s interests in

liberty or personal welfare are at stake. Liberty Mut. Ins. Co.

v. Land, 186 N.J. 163, 170 (2006); State v. Michaels, 136 N.J.

299, 321-23 (1994). The standard is also frequently imposed

where, by operation of common or statutory law, a strong

presumption favors a contrary result. See Auge v. N.J. Dept. of

Corr., 327 N.J. Super. 256, 263 (App. Div.), certif. denied, 164

N.J. 559 (2000).

38 A-2415-16T7
 Clear and convincing evidence should produce in the mind of

the decision-maker "a firm belief or conviction as to the truth

of the allegations sought to be established." State v.

Hernandez, 170 N.J. 106, 127 (2001) (quoting In re Samay, 166

N.J. 25, 30 (2001)); State v. Hodge, 95 N.J. 369, 376 (1984).

The evidence must be "so clear, direct and weighty and

convincing as to enable either a judge or jury to come to a

clear conviction, without hesitancy, of the precise facts in

issue." In re Seaman, 133 N.J. 67, 74 (1993) (quoting Aiello v.

Knoll Gold Club, 64 N.J. Super. 156, 162 (App. Div. 1960));

accord Hernandez, supra, 170 N.J. at 127. To meet this test,

the truth of an allegation must be "highly probable." Perskie,

supra, 207 N.J. at 290.

Consequently, in exercising our role of appellate

oversight, we are obligated to bear in mind the challenging

burden under the Act that the State must meet in most cases to

support its detention motion. If the points in favor of the

detention motion do not heavily weigh in favor of the State in

such instances, the trial court should deny the application, and

we should be loath to disturb that denial on appeal.

Conversely, if the State manifestly has made such a showing, we

must carefully consider whether the trial court has abused its

39 A-2415-16T7
discretion or misapplied the law in rejecting the application

and, if so, set aside the determination.

B.

We next consider the legal significance of a defendant's

prior juvenile record in making a detention decision under the

Act. This likewise is an issue on which counsel fundamentally

agree.

As we have noted, the Pretrial Services matrix for the NCA

and FTA scores does not statistically incorporate a defendant's

prior juvenile record. Nevertheless, Section 20 of the Act

broadly authorizes the trial court to consider a defendant's

"past conduct" as one of the many permissible factors in

evaluating his or her suitability for pretrial release.

N.J.S.A. 2A:162-20(c)(1).

A defendant's prior adjudications of delinquency and the

nature of his or her juvenile offenses are logically part of his

or her "history and characteristics" and indicative of the

danger he or she poses to the community under N.J.S.A. 2A:162-

20(c) and (d). Notably, juvenile history is taken into account

in federal detention determinations, where the court is

directed, under 18 U.S.C.A. § 3142(g), to consider the same

types of information set forth in N.J.S.A. 2A:162-20. See,

40 A-2415-16T7
e.g., United States v. Begay, 315 Fed. Appx. 53, 54-56 (10th

Cir. 2009).

We appreciate that the objectives of the juvenile justice

system generally differ from those for the adult criminal

justice process. See, e.g., In re Registrant J.G., 169 N.J.

304, 325 (2001) (emphasizing the Juvenile Code's preference for

"supervision, care and rehabilitation" as alternatives, instead

of incarceration for juveniles adjudicated delinquent); State ex

rel. S.S., 367 N.J. Super. 400, 407 (App. Div. 2004), aff'd 183

N.J. 20 (2005) ("Even with respect to a juvenile charged with

conduct that would be a crime if committed by an adult, the

overriding goal of the juvenile justice system is

rehabilitation, not punishment.").

Nevertheless, an adult defendant's prior juvenile record

may properly be considered in making sentencing determinations,

particularly if the juvenile adjudications are relatively

recent, voluminous, or severe. See, e.g., State v. Torres, 313

N.J. Super. 129, 162 (App. Div.) (instructing that a sentencing

court may consider defendant's juvenile record, even if the

charges did not result in adjudications), certif. denied, 156

N.J. 425 (1998); State v. Phillips, 176 N.J. Super. 495, 502

(App. Div. 1980) (holding that a sentencing judge may consider

juvenile offenses "so long as they are not given the weight of a

41 A-2415-16T7
criminal conviction") (citing State v. Marzlof, 79 N.J. 167,

176-77 (1979)).

Simply stated, a defendant's juvenile offenses may count in

the detention calculus, but should not be weighed as heavily as

prior adult convictions. None of the parties before us dispute

this principle.

C.

We next consider the relevance of a defendant's prior tier

classification as a sex offender under Megan's Law. As part of

the Megan's Law assessment for such potential registrants, the

State is obligated to demonstrate the propriety of defendant's

tier classification by clear and convincing evidence. In re

Registrant M.F., 169 N.J. 45, 54 (2001).

The RRAS was developed by a committee of mental health

experts and members of the law enforcement community convened by

the Attorney General. See In re Registrant of C.A., 146 N.J.

71, 82 (1996); In re Registrant V.L., 441 N.J. Super. 419, 425

(App. Div. 2015). The RRAS was created in response to the

Legislature's directive in Megan's Law for the Attorney General

to promulgate guidelines and procedures for notification of a

sex offender's whereabouts, depending upon the offender's degree

of risk of re-offense. N.J.S.A. 2C:7-8; V.L., supra, 441 N.J.

Super. at 428-29. The RRAS is divided into four categories

42 A-2415-16T7
corresponding to the individual's seriousness of offense,

offense history, personal characteristics, and community

support. Id. at 429. Each category contains at least two of a

total of thirteen criteria, and each such criterion is assigned

a score corresponding to a low, moderate, or high risk

assessment. Ibid. The factors are then all assigned weights

with a multiplier, producing an overall score that numerically

classifies the offender in either Tier 1 (low risk of re-

offense), Tier 2 (moderate risk of re-offense), or Tier 3 (high

risk of re-offense). Ibid. The scoring is to be conducted in

accordance with Guidelines issued by the Attorney General, id.

at 426, and a Registrant Risk Assessment Manual, id. at 429.

Placement in Tier 3 under Megan's Law means that a

defendant has been found by clear and convincing evidence to be

in "the highest risk [of re-offense] category for sexual

offenders[,] requiring Internet registration and the most

comprehensive degree of community notification." Riley v. N.J.

State Parole Bd., 219 N.J. 270, 276 (2014); M.F., supra, 169

N.J. at 52-54.

Here, when defendant was designated as a Tier 3 Megan's Law

offender, he presumably underwent a comprehensive evaluation in

43 A-2415-16T7
order to determine the likelihood that he would re-offend.21 The

precise nature of his original offenses would have been

considered. Many aspects of his life and character would have

been assessed. Another trial judge conducted a hearing on that

classification, at which defendant presumably had the right to

counsel.

It is obvious that an assessment conducted pursuant to

Megan's Law tier review comprises a material, although not

dispositive, source of information for a trial court when

conducting a detention hearing. The tier classification

logically falls within the broad ambit of N.J.S.A. 2A:162-

20(c)(1), which authorizes the pretrial detention judge to

consider a defendant's "character," "physical and mental

condition," "past conduct," and other personal history and

characteristics.

In fact, many of the risk-related considerations within the

Megan's Law assessment topically correspond to those at issue

under the Act, in gauging a defendant's likelihood of re-

offending while on release. The Megan's Law tier classification

should be particularly instructive where, as here, the defendant

is charged with new sexual offenses.

21
As we have noted, we do not know the current status of
defendant's tier classification in the wake of the December 2016
remand.

44 A-2415-16T7
 D.

The final legal issue before us is whether, as the

Prosecutor argued in his initial brief, a Pretrial Services

recommendation to detain a defendant creates, under Rule

3:4A(b)(5), a rebuttable presumption against release that a

defendant must overcome. At oral argument on the appeal, the

Prosecutor withdrew this particular argument.

To aid the trial bench and bar, we should nevertheless

point out that, as the Rule expressly states, a Pretrial

Services recommendation to detain a defendant may be, but is not

required to be, relied upon by the court as "prima facie

evidence" to support detention. R. 3:4A(b)(5). Again, the use

of the term "may" within the provision signals discretion.

Harvey, supra, 30 N.J. at 391. The court may require a

prosecutor to rely upon more than the PSA and the recommendation

to carry its burden. Cf. Ingram, ___ N.J. Super. ___ (slip op.

at 33) (analogously noting the court's discretion to require a

prosecutor to provide a more expansive proffer to establish

probable cause).

III.

Having addressed these various general points of law

implicated by the new Act, we finally turn to the trial court's

rulings in this case. We approach our review acutely cognizant

45 A-2415-16T7
that the court's rulings were issued in the first month of the

new Act's implementation. That was before any published case

law construing the Act had emerged and while prosecutors,

defense lawyers, and court personnel were all adjusting to the

many operational challenges presented by the new statute.

Indeed, much of the trial court's oral and written analysis

focused on discovery and proffer issues that had yet to be

addressed in a published opinion, until this court's respective

February 2017 decisions in Robinson and Ingram.

With that context and timing in mind, and affording all due

deference to the trial court's zone of discretion, we have

several reservations about the court's reasoning, as well as the

sufficiency of the record.

Despite the temporary remand, the trial court did not

explain in writing specifically why it deviated from the portion

of the Pretrial Services recommendation advising against

defendant's release. As we have already noted, such a written

explanation is required by the Act in N.J.S.A. 2A:162-23(a)(2).

We suspect that this critical omission may have been caused by

the somewhat confusing two-part format of the PSA, which the

Judiciary has now corrected prospectively since March 2. It is

conceivable that the trial court may have perceived that the

second part of the Pretrial Services recommendation stating, "If

46 A-2415-16T7
released, weekly reporting + HD/EM," meant that detention and

release on conditions were equally recommended for C.W. As the

Acting Administrative Director's March 2 memo clarified, such

equivalency was not intended under the prior format.

We recognize the public defender and the ACLU have argued

that a Pretrial Services recommendation to detain is automatic,

or at least virtually automatic, for any defendant charged with

a sexual assault. Even if the recommendation to detain in such

cases is, in fact, an automatic, computer-generated certainty in

sexual assault cases, the statute nevertheless obligates the

trial court to provide written reasons explaining why it is

departing from that recommendation, whatever its genesis. That

unfortunately was not done here.

The trial court did mention in its rulings the two low

scores in defendant's PSA for FTA and NCA, and the absence of a

violence flag. We cannot tell, however, how much weight the

court actually placed on those low numbers. The numbers are not

particularly informative here since they do not reflect

defendant's juvenile history, and since he would presumably not

have skipped a court appearance while he was confined for

several years at Jamesburg.

We are also concerned about the trial court's abbreviated

passing references to defendant's juvenile record and his

47 A-2415-16T7
classification under Megan's Law. The court did mention the

existence of those things in its oral ruling, but did not

explain why they did not make a difference to the outcome.

The present record on these points is also deficient to

afford meaningful consideration. We do not know what conduct

was involved in defendant's two violations of probation in 2012

and 2013. Apparently, he was not charged with additional

substantive offenses stemming from those incidents, but that

does not necessarily mean that they were minor or did not

correlate in some way to defendant's past wrongful behavior.

Similarly, there is no information in this record about the

timing, details, underlying rationale, or current status of the

tier classification under Megan's Law.

As an additional concern, we lack confidence that in

denying detention the trial court sufficiently took into account

several points stressed by the State, including defendant's

alleged commission of a new sexual offense after his discharge

from Jamesburg, the close proximity of the minor's residence

(which only seemed to come into play in phase two of the January

25 hearing with respect to modifying the conditions of release),

and overall public safety considerations.

The Prosecutor and the Attorney General urge that we

reverse the trial court's ruling and issue our own order

48 A-2415-16T7
mandating detention. Conversely, defense counsel and the ACLU

submit that we affirm the trial court's ruling as is, although

they candidly acknowledge certain shortcomings in the record and

the court's analysis. They also maintain that the statute only

permits the State or a defendant to reopen a detention hearing

with material information that was "not known" to that party at

the time of the original hearing. N.J.S.A. 2A:162-19(f).

We adopt neither advocated course of action. Instead, we

remand the matter for reconsideration by the trial court, which

will now have the benefit of the new case law, as well as the

March 2, 2017 guidance memorandum and this opinion. The parties

and the court shall develop or clarify the record further, as

may be feasible and fair under the circumstances.

In issuing this remand, we do not encourage prosecutors in

the future to make "bare-bones" presentations at detention

hearings with an expectation that they will automatically

receive a second chance at amplifying their contentions if they

do not prevail. Nor do we invite defense counsel or trial

judges, despite the busy and rapid-paced nature of this docket,

to cut corners unduly. Nevertheless, as our system adapts to

the new law, a remand in this case is a fair and instructive

outcome.

49 A-2415-16T7
 In the meantime, the stringent conditions of defendant's

release set forth in the trial court's January 25, 2017 order

shall remain in place, unless and until the trial court issues a

superseding order. The aggrieved party on the outcome of

reconsideration may seek review in a new appeal or motion for

leave to appeal. We do not retain jurisdiction.

Remanded for further consideration by the trial court,

consistent with this opinion.

50 A-2415-16T7