RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1836-16T6
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMANTAY GAINES,
Defendant-Appellant.
___________________________________________
Argued February 14, 2017 – Decided March 1, 2017
Before Judges Messano, Espinosa and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. W-2017-000042-0906.
Joseph E. Krakora, Public Defender, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Katie Kronick, Assistant
Deputy Public Defender, of counsel and on the
brief).
Stephanie Davis Elson, Assistant Prosecutor,
argued the cause for respondent (Esther
Suarez, Hudson County Prosecutor, attorney;
Ms. Elson, on the brief).
Claudia Joy Demitro, Deputy Attorney General,
argued the cause for amicus curiae Office of
the Attorney General (Christopher S. Porrino,
Attorney General, attorney; Ms. Demitro, on
the brief).
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).
PER CURIAM
Defendant Jamantay Gaines appeals from the Law Division's
January 9, 2017 order that granted the State's motion to detain
him pretrial pursuant to the Bail Reform Act (the Act), N.J.S.A.
2A:162-15 to -26. Defendant was arrested in Jersey City and
charged in a complaint-warrant with second-degree possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b)(1).
At the hearing held before Judge Paul M. DePascale on January
9, 2017, the State sought to introduce the complaint-warrant, the
affidavit of probable cause that supported it, the Preliminary Law
Enforcement Incident Report, the Public Safety Assessment (PSA)
and defendant's criminal history and history of juvenile
adjudications. Taken collectively, these documents demonstrated
Police Officer Mike Meade and another officer observed defendant
in possession of a 9mm. handgun and "seized/recovered" the weapon.
2 A-1836-16T6
Defendant's score on the PSA's "Failure to Appear" and "New
Criminal Activity" risk scales was four. There was no "New Violent
Criminal Activity" flag. Defendant, who was nineteen-years old,
faced pending charges for other firearm offenses and criminal
trespass, as well as the disorderly persons offense of obstruction,
from a December 2016 arrest. He had also failed to appear in
court on one occasion within the past two years. The PSA also
listed defendant's juvenile record, which included juvenile
delinquency adjudications beginning in 2011 for theft, unlawful
possession of a handgun, possession of a controlled dangerous
substance (CDS), simple assault and violations of probation.1 The
recommendation in the PSA was for defendant's release with bi-
weekly reporting.
Defense counsel objected to Judge DePascale proceeding
without the State producing a "live witness" to establish probable
cause. Counsel cited Rule 3:4-3(a), which permits a pre-indictment
hearing to determine probable cause at which the judge "shall hear
evidence . . . and the defendant may cross-examine witnesses
1 The PSA does not account for a defendant's juvenile justice
history in assessing the risks for failure to appear or new
criminal activity. The New Jersey Courts website,
http://www.judiciary.state.nj.us/criminal/cjr/PSP.pdf, provides a
link to the "PSA Risk Factors and Formula" webpage of the Laura
and John Arnold Foundation, which lists the nine risk factors
considered by the PSA.
3 A-1836-16T6
offered by the State." She sought to distinguish federal precedent
decided under the analogous Bail Reform Act of 1984, 18 U.S.C.A.
§ 3141 to § 3150 (the Federal Act), and cited her own personal
experience appearing in the District of Columbia Court
representing defendants under a statute similar to the Federal
Act. She noted judges in the District of Columbia "require[] that
a live witness come forward and provide testimony . . . ." Defense
counsel also relied upon a New Hampshire decision, which we discuss
in more detail below.
After Judge DePascale rejected the argument and admitted the
documents, defense counsel contended the State's proffer failed
to establish probable cause. The judge partially agreed and
concluded the State had established probable cause only for the
unlawful possession charge.
Defense counsel urged Judge DePascale to adopt the
recommendation of Pretrial Services and release defendant with
conditions. She cited defendant's age, lack of an adult criminal
record, family support and ties to the community, and argued
defendant should be placed on "home arrest" with a "GPS monitor"
to minimize any risk to public safety or of defendant's failure
to appear.
In a comprehensive oral opinion, Judge DePascale noted
defendant's "multiple adjudications of delinquency that span over
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[five] years," that defendant was unemployed, had a "drug history"
and "a record of failing to appear." Judge DePascale further
found that although defendant may "have a support system," it had
not "been sufficient to supervise him adequately in the past."
The judge noted defendant's pending charge for firearms offenses
that occurred less than one month before this arrest. He found
that even with home detention as a condition, pretrial release
"would place the safety of the community at risk" given defendant's
"demonstrated . . . propensity for the quick acquisition of
handguns and a longstanding disregard for [c]ourt supervision."
In the order we review, Judge DePascale found the State had
demonstrated by clear and convincing evidence that "no amount of
monetary bail, non-monetary conditions or combination" or both
"would reasonably assure[] the protection of the safety of any
other person or the community." N.J.S.A. 2A:162-19(e)(3). He
made specific findings regarding the statutory factors set forth
in the Act. See N.J.S.A. 2A:162-20(a)–(f).
Defendant filed this appeal as of right. N.J.S.A. 2A:162-
18(c); R. 2:9-13(a). Thereafter, we granted motions filed by the
Attorney General and the American Civil Liberties Union (ACLU) to
appear as amici.
Defendant argues that permitting the State to proceed
entirely by proffer violated his right to due process. He contends
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that the Act and our Court Rules "require live testimony to
establish probable cause." Defendant also relies on case law from
other jurisdictions to support this contention. Additionally,
defendant argues the State failed to establish probable cause or
meet its burden of proof justifying pretrial detention under the
Act. The ACLU submits that permitting the State to proceed without
a live witness violates due process.
The State counters by arguing due process does not require
the production of a live witness at the detention hearing, a
conclusion supported by significant precedent from other
jurisdictions. The State further contends it established probable
cause at the hearing and demonstrated, by clear and convincing
evidence, grounds for defendant's pretrial detention. The
Attorney General submits the Act, Court Rules and federal precedent
make clear that the State may proceed by proffer alone.
Having considered these contentions and the arguments of
counsel, we affirm.
We have, this day, filed our opinion in State v. Ingram, ___
N.J. Super. ___ (App. Div. 2017), which specifically addresses
defendant's claims that permitting the State to proceed at a
pretrial detention hearing solely by proffer violates due process
and the Act. We not need repeat our analysis here, but rather
6 A-1836-16T6
address only the additional arguments this defendant has
specifically raised.
Defendant cites case law from Vermont and New Hampshire in
support of his contentions. In State v. Brooks, 196 Vt. 604, 605
(2002), the court affirmed revocation of the defendant's bail
based upon live testimony and sworn statements. Citing its earlier
decision in State v. Sauve, 621 A.2d 1296 (Vt. 1993), the Supreme
Court of Vermont held that a bail revocation hearing "must be
based on more than affidavits and sworn statements." Ibid.
However, Vermont law, permitting revocation of bail in
certain circumstances, is distinctly different from the Act and
the Federal Act. The Vermont Constitution guarantees a right to
bail, except for (1) "offenses punishable by death or life
imprisonment when the evidence of guilt is great," or (2) for
felonies involving violence "when the evidence of guilt is great"
and release "poses a substantial threat of physical violence" that
conditions would not prevent. Sauve, supra, 621 A.2d at 1299
(quoting Vt. Const., ch. II, § 40);2 see also State v. Gates, 145
2
Similarly, our constitution previously provided "[a]ll persons
shall, before conviction, be bailable by sufficient sureties,
except for capital offenses when the proof is evident or
presumption great." N.J. Const., art. I, § 11 (2016). However,
effective January 1, 2017, our constitution was amended to remove
the right to bail and now provides:
7 A-1836-16T6
A.3d 233, 236 (Vt. 2016) ("[E]xcept in 'very limited and special
circumstances where the State's interest is legitimate and
compelling, a court may not deny bail in the face of the
constitutional right.'" (quoting State v. Blackmer, 631 A.2d 1134,
1137 (Vt. 1993))). Thus, in order to revoke a defendant's bail
in Vermont, the prosecutor must establish much more than probable
cause; he or she must establish that "the evidence of guilt is
great," and, in some cases, that release poses "a substantial
threat of physical violence."
Defendant also cites State v. Poulicakos, 559 A.2d 1341 (N.H.
1989). There, the State sought the defendant's detention on a
murder charge by proffering certain evidence and calling a police
All persons shall, before conviction, be
eligible for pretrial release. Pretrial
release may be denied to a person if the court
finds that no amount of monetary bail, non-
monetary conditions of pretrial release, or
combination of monetary bail and non-monetary
conditions would reasonably assure the
person’s appearance in court when required,
or protect the safety of any other person or
the community, or prevent the person from
obstructing or attempting to obstruct the
criminal justice process. It shall be lawful
for the Legislature to establish by law
procedures, terms, and conditions applicable
to pretrial release and the denial thereof
authorized under this provision.
[N.J. Const., art. I, § 11.]
8 A-1836-16T6
captain who led the investigation as a witness. Id. at 1342. The
defendant objected, arguing that "permitting the State to present
evidence . . . by offer of proof, without presenting any witnesses,
violated his right of confrontation under the State Constitution."
Ibid. Interpreting a pretrial detention statute similar to the
Act, the Supreme Court of New Hampshire held that "the State may
proceed by offer of proof so long as it supplies a witness or
witnesses who can make meaningful the defendant's right to cross-
examination." Id. at 1341. The Poulicakos court noted, however,
that the Federal Act had "identical language" to the now-repealed
New Hampshire statute, RSA 597:6-a, VII (Supp. 1988), and that
federal courts "have permitted the government to proceed by proffer
and have not required live witnesses." Id. at 1343. The court
stated:
We hold that under RSA 597:6-a, VII (Supp.
1988), as under the federal law, the
government may proceed by proffer. If the
defendant raises questions about the accuracy
of the State's proffer, the court can require
the prosecution to present witnesses to
buttress its offer of proof.
[Ibid. (emphasis added).]
The court also stated a defendant's statutory right "to cross-
examine witnesses who appear at the hearing" requires the State
to "supply a witness or witnesses capable of being effectively
cross-examined." Ibid.
9 A-1836-16T6
However, we construe this part of the court's holding as
limited only to those situations in which the State actually
produces a witness at the hearing. As the court explained at the
conclusion of the decision:
The defendant's right to cross-examination at
the detention hearing, guaranteed by statute
as well as by the due process clause . . .is
satisfied by the State's supplying a
knowledgeable witness who can be cross-
examined effectively.
The right to confront adverse witnesses
face-to-face, as separate from the right to
cross-examination, is not absolute in pre-
trial proceedings. The defendant's right to
confrontation is satisfied by his opportunity
for cross-examination and by his opportunity
to raise questions about the accuracy of the
State's proffer in his own offer of proof or
through his own witnesses, inducing the court
to require the State to produce witnesses
supporting its proffer.
[Id. at 1344.]
While the exact contours of the holding in Poulicakos may be
subject to debate, it suffices to say that against the overwhelming
federal precedent we cited in Ingram, supra, slip op. at 21-24,
the New Hampshire decision lacks any persuasive authority.
Additionally, as noted, defense counsel cited her personal
experience in the District of Columbia courts as indicative of the
State's obligation to call a live witness at every detention
hearing. On appeal, counsel filed a certification repeating her
10 A-1836-16T6
assertion and arguing the State must produce a live witness.
However, defendant's brief acknowledges case law from the District
of Columbia "does not require a live witness." See United States
v. Edwards, 430 A.2d 1321, 1337 (D.C. 1981) (en banc) ("The
information presented to the judicial officer by either the
government or the defense may be by proffer and 'need not conform
to the rules pertaining to the admissibility of evidence in a
court of law.'" (emphasis added) (citing D.C. Code 1973, § 23-
13322(c))), cert. denied, 455 U.S. 1022, 102 S. Ct. 1721, 72 L.
Ed. 2d 141 (1982). We find defendant's argument unpersuasive.
Defendant further argues that the State's proffer failed to
establish probable cause, because the documents failed to state
where defendant possessed the handgun. Defendant asserted that
possession of the gun in his home or place of business would not
be unlawful. N.J.S.A. 2C:39-6(e). However, Judge DePascale
rejected this assertion, noting there was no evidence or proffer
by the defense contradicting the documents, which charged
defendant with unlawful possession in the presence of the officers.
We reject defendant's claim that in this regard, the judge shifted
the burden of proof from the State.
Last, defendant argues the State failed to prove by clear and
convincing evidence grounds for his detention. As we noted in
Ingram, supra, ___ N.J. Super. ____ (slip op. at 36-37), the Act
11 A-1836-16T6
does not set forth the controlling standard for appellate review
of the Law Division's order, and the federal circuit courts have
seemingly split on the issue. In this case, the State argues the
appropriate standard is whether Judge DePascale mistakenly
exercised his discretion. At oral argument, defendant
acknowledged that most likely was the appropriate standard.
We need not resolve the issue. It suffices to say we are
persuaded that, for all the reasons found by Judge DePascale, as
incorporated in his oral decision and detailed conforming order,
the State clearly and convincingly demonstrated grounds for
defendant's pretrial detention.
Affirmed.
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