STATE OF NEW JERSEY VS. DONOVAN WHITE STATE OF NEW JERSEY VS. LARRY BOSTIC (17-05-1216, ESSEX COUNTY AND STATEWIDE AND W-2017-1470-0614, CUMBERLAND COUNTY AND STATEWIDE)(CONSOLIDATED)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4778-16T6
A-5364-16T6

STATE OF NEW JERSEY,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION

v. December 5, 2017

DONOVAN WHITE, APPELLATE DIVISION

Defendant-Appellant.
______________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LARRY BOSTIC,

Defendant-Appellant.
_______________________________________

Argued October 30, 2017 – Decided December 5, 2017

Before Judges Messano, O'Connor, and
Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
17-05-1216 in A-4778-16.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Complaint
No. W-2017-1470-0614 in A-5364-16.

Laura B. Lasota, Assistant Deputy Public
Defender, argued the cause for appellant
 Donovan White in A-4778-16 (Joseph E.
Krakora, Public Defender, attorney; Ms.
Lasota and Christiane Cannon, Assistant
Deputy Public Defender, of counsel and on
the briefs).

Nathan R. Perry, Assistant Deputy Public
Defender, argued the cause for appellant
Larry Bostic in A-5364-16 (Joseph E.
Krakora, Public Defender, attorney; Mr.
Perry, of counsel and on the brief).

Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent in A-4778-16
(Robert D. Laurino, Acting Essex County
Prosecutor, attorney; Mr. Ducoat, of counsel
and on the briefs).

Andre R. Araujo, Assistant Prosecutor,
argued the cause for respondent in A-5364-16
(Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney; Mr. Araujo, of counsel
and on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

In these appeals, now consolidated in a single opinion, we

consider for the first time the procedural and substantive

provisions of the Criminal Justice Reform Act, N.J.S.A. 2A:162-

15 to -26 (the CJRA), that are applicable when a previously

released defendant allegedly violates one or more conditions of

release imposed by the court. We provide some background.

As to A-4778-16

Defendant Donovan White was arrested on January 28, 2017,

and charged with second-degree robbery and other offenses.

2 A-4778-16T6
Defendant's score on the public safety assessment (PSA) for both

failure to appear (FTA) and new criminal activity (NCA) was

five, the second-highest possible score in each category, and

Pretrial Services recommended against his release. The State,

however, did not move to detain defendant. The judge ordered

defendant's release with the conditions that he: refrain from

committing any new offense; avoid contact with the victim;

report to Pretrial Services every week, alternately in person

and by phone; remain on home supervision with an electronic

monitoring device (EMD); avoid the location where the robbery

occurred; appear for all scheduled court proceedings; and

immediately notify Pretrial Services of any change of address,

telephone number, or other contact information. The grand jury

indicted defendant on May 9, 2017.

On May 25, Pretrial Services filed a violation report,

indicating that defendant had permitted his EMD to "die" on

several occasions and to remain dead for several days by failing

to keep it charged. Apparently, the State moved to revoke

defendant's release or modify the conditions of release. R.

3:26-2(c).1

On the return date of June 5, 2017, the prosecutor said

that in light of his conversation with defense counsel, the

1
The motion is not in the appellate record.

3 A-4778-16T6
State would not seek detention or modification. The prosecutor

noted that the EMD had "shorted out," and that defendant had

been "forced out" of his mother's home after an argument, which

had "led to the bracelet not being charged." Defense counsel

argued against any change in conditions under these

circumstances, and the judge agreed. The prosecutor indicated,

nevertheless, that any further problems would lead to the

State's filing another motion to revoke defendant's release.

Pretrial Services filed a second violation report on June

21, 2017. It alleged that: defendant's EMD was "dead" on three

separate dates after the June 5 hearing; defendant failed to

report "for instruction" on the proper use of the device after

the hearing and after acknowledging receipt of a message to

report; numerous "satellites" detected defendant's presence at

various hours at three different locations in Hoboken and

Newark; and defendant failed to update his home address.

Pretrial Services recommended revocation of defendant's release,

and the State moved for that relief.

On Friday, July 7, the prosecutor and defense counsel

appeared before the judge; defendant was not present. There was

some confusion regarding the date set for the revocation

hearing, with defense counsel and the prosecutor both indicating

that the hearing was set for Monday, July 10. Defense counsel

4 A-4778-16T6
indicated that she had been in touch with defendant, and he

intended to be present on Monday and to produce a witness and

evidence. Both attorneys agreed to delay the hearing.

However, unbeknownst to counsel or the court, defendant

reported to Pretrial Services later in the day on July 7, and

was told to report to court. He did so. Before the judge,

defense counsel explained that instead of reporting to Pretrial

Services telephonically as required, defendant had appeared in

person because of continued problems with his EMD. Over

defendant's objection, the judge immediately considered the

State's motion to revoke defendant's release.

Defense counsel sought an adjournment, arguing that

defendant was not prepared to respond because he had received

notice that the motion would be heard on July 10. Defendant

intended to call his mother as a witness to confirm that he was

residing with her and to address "some of the concerns . . .

about the [EMD] being defective," but she was not available to

testify until Monday. Defendant also wanted to present evidence

from his employer to show that he had been working consistently

and that his presence at the three locations cited in the

violation report had been work-related. Counsel stressed that

in the nearly six months since defendant had been released on

conditions, he had not been arrested for a new offense, had not

5 A-4778-16T6
been in contact with the victim, had not been in the area of the

offense and had not failed to appear for a court date.

The judge agreed that defendant's conduct did not offend

"two of the primary goals of pretrial release," which were to

guard against the commission of a new offense and the failure to

appear in court. However, the judge stated, "the conditions of

release are not limited to that. There are certain prophylactic

conditions placed upon the accused to provide . . . reasonable

assurances that . . . there will be an appearance as required,

there will be no new offenses, and there will be no obstruction

of justice."

The judge noted that Pretrial Services had initially

recommended detention based on defendant's PSA score, and that

the recommendation established a "prima facie case which would

satisfy the finding by clear and convincing evidence that there

is [sic] no conditions or combinations of conditions that will

reasonably assure the defendant's appearance, the protection of

the safety of the community."

The judge took note of defendant's prior record; his

subsequent indictment, which established probable cause that

defendant committed the crimes charged; and the strength of the

State's evidence. The judge found that after the June 5

hearing, defendant continued to allow the EMD to die, thus

6 A-4778-16T6
inhibiting Pretrial Services from monitoring his location;

failed to report to Pretrial Services on June 14; and was

present at the three locations noted in the violation. The

judge stated:

[E]ssential to the proper functioning of the
criminal justice reform is the ability to
monitor compliance with release conditions.
Despite having the opportunity earlier in
response to the first notice of violation,
[sic] the information before the Court amply
demonstrates by a preponderance that there
has been a violation of the home detention
provision. And this Court is no longer
comfortable with the continued release of
[defendant].

And I find by clear and convincing
evidence through operation of the prima
facie case provision based upon the
information set forth in the PSA that there
are no conditions or combinations of
conditions that will reasonably assure the
defendant's appearance, the protection of
the safety of the community.

The judge entered the July 7, 2017 pretrial detention order from

which defendant now appeals.

As to A-5364-16

On June 22, 2017, defendant Larry Bostic was charged with

five counts of endangering the welfare of children and five

counts of invasion of privacy. The State alleged that defendant

surreptitiously video recorded female juvenile employees

disrobing and changing into work uniforms at defendant's

business. Although defendant's PSA scores were two (FTA) and

7 A-4778-16T6
one (NCA), and Pretrial Services had recommended his release on

his own recognizance, the judge ordered defendant detained.

Defendant appealed, and, on July 24, 2017, a panel of our

colleagues vacated the detention order and remanded the matter,

concluding that the judge had failed to provide written factual

findings in support of the order. The remand hearing took place

on August 2.2

With little discussion, the judge ordered defendant's

release on "Level 3, monitoring, home detention and a bracelet."

He advised defendant that except to go to the doctor, shop for

food or come to court, he could not leave his home. The judge

ordered defendant to appear at Pretrial Services the next day

upon his release from jail.3 He also: ordered defendant to have

no contact with the victims; requested the prosecutor to supply

the victims' addresses; told defendant that his "bracelet" would

"set off an alert" if he entered the 1000-feet "zone of

exclusion" around the victims; and ordered defendant to have no

contact with anyone under the age of eighteen.

2
Although the transcript of the remand hearing indicates it took
place before a different judge, this is an apparent error. The
order following remand bears the signature of the same judge who
issued the detention order, and he referenced our remand order
during the course of the hearing.
3
Even though the charges emanated from Cumberland County,
defendant was apparently incarcerated in the Camden County jail.

8 A-4778-16T6
 The order of release ostensibly detailed these and other

conditions imposed on defendant. However, the order erroneously

provided: "Defendant shall come within 1000 feet of any victim

inclusion zones." Moreover, the addresses of the victims were

not in the order, and the record fails to reveal that those

locations were ever provided to defendant prior to his release.

As instructed, defendant appeared at Pretrial Services on

August 3, 2017. He was immediately taken into custody based

upon a violation report, which indicated that the assistant

criminal division manager had contacted local police when

defendant's EMD demonstrated that he had "failed to remain in

his home," was "roaming the city of Vineland most of the day,"

and had entered a victim exclusion zone for one minute. In the

violation report, Pretrial Services wrote that defendant was

currently on the highest level of
supervision. According to the structure
response grid, entering a victim exclusion
zone is a major violation as [is] leaving
your approved home address. There are no
conditions that can be placed on the
defendant that will ensure his compliance.

The record before us indicates no arrest warrant was issued, and

defendant never appeared before a judge until August 9, which

was the return date for the State's motion to revoke defendant's

release.

9 A-4778-16T6
 A different judge presided over the revocation hearing.

The prosecutor proffered the violation report from Pretrial

Services and a Google map, which she claimed demonstrated that

defendant "was essentially moving all around the city of

Vineland in violation of his conditions." Defense counsel

initially tried to explain that defendant did not know "the

location of the victim exclusion zone." She claimed that

defendant had gone to the police department a few blocks from

his home to retrieve his wallet and keys.

Defendant insisted on speaking, so the judge placed him

under oath. Defendant said that he had tried unsuccessfully to

retrieve his wallet and keys from the local police department, a

few blocks from his home. He relied upon an elderly friend to

drive him from his home in Vineland to Pretrial Services in

Bridgeton. Defendant said that he had no control over the route

his friend had taken, and he had no knowledge where any of the

five alleged victims lived.

The prosecutor's retort was that as the "proprietor of the

business . . . it's assumed that [defendant was] probably going

to know where these kids are living." The record fails to

demonstrate that the prosecutor had complied with the court's

earlier request to supply those addresses, or that the pretrial

release order actually served on defendant included the victims'

10 A-4778-16T6
addresses or described the parameters of the victim exclusion

zones.

Referencing the violation report, the judge found that

defendant had been in the exclusion zone where two victims lived

in the same apartment complex, and that defendant had "failed to

remain in [his] home as required." He concluded that defendant

was

obviously . . . not in compliance and . . .
there's no manner in which we can keep [him]
in compliance.

At this point the State has overcome
its burden in establishing that there's no
amount of monetary bail, non-monetary
conditions or combinations thereof which
would ensure that . . . you[ would] appear
in court[,] . . . not present a danger to
the community[] and . . . not obstruct
justice.

The detention order indicated that the judge made these findings

by clear and convincing evidence. The order also cited the

"nature and circumstances of the offense," including defendant's

violation of conditions of pretrial release; the weight of the

evidence, specifically the violation report and Google map; the

risk defendant posed to witnesses and the community; and

Pretrial Services' recommendation of detention.

Defendant filed this appeal.

11 A-4778-16T6
 I.

The CJRA "'shall be liberally construed' to effect its

purpose: to rely primarily on 'pretrial release by non-monetary

means to reasonably assure' that a defendant will 'appear[] in

court when required,' will not endanger 'the safety of any other

person or the community,' and 'will not obstruct or attempt to

obstruct the criminal justice process.'" State v. Robinson, 229

N.J. 44, 55 (2017) (quoting N.J.S.A. 2A:162-15). With certain

exceptions, or unless the prosecutor moves for pretrial

detention, the CJRA requires the court to release a defendant on

his personal recognizance or unsecured appearance bond following

arrest. N.J.S.A. 2A:162-17(a). Only if those conditions are

inadequate "to assure a defendant's return to court and protect

both public safety and the integrity of the criminal justice

process," may the judge impose "non-monetary conditions that are

the least restrictive conditions necessary." Robinson, supra,

229 N.J. at 55 (citations omitted).

Compliance "with all conditions of release" is another

stated purpose of the Act. N.J.S.A. 2A:162-15. These

conditions may include requiring a defendant to refrain from

committing another crime, from contacting the alleged victim of

the crime, from contacting witnesses named in the release order

or subsequent court order, and other non-monetary conditions.

12 A-4778-16T6
N.J.S.A. 2A:162-17(b)(1)(a) to (c) and (b)(2); R. 3:26-2(b)(2)

and (3).

When a defendant is released on conditions,

the court shall, in the document authorizing
the eligible defendant's release, notify the
eligible defendant of:

(a) all the conditions, if any, to which the
release is subject, in a manner sufficiently
clear and specific to serve as a guide for
the eligible defendant's conduct; and

(b) the penalties for and other consequences
of violating a condition of release, which
may include the immediate issuance of a
warrant for the eligible defendant's arrest.

[N.J.S.A. 2A:162-23(a)(1)(emphasis added).]

If the court orders a defendant's release subject to conditions,

it may subsequently review the conditions on its own motion, or

on motion by either party, and may modify the conditions or

impose new conditions upon a showing of a material change in

circumstances. R. 3:26-2(c)(2).

The State may seek revocation of a defendant's release if

he or she violates a restraining order or a condition of

release, "or upon [the court's] finding of probable cause . . .

that the . . . defendant has committed a new crime while on

release." N.J.S.A. 2A:162-24; accord R. 3:26-2(d)(1). Pending

disposition of a motion to revoke release, a defendant shall

remain released and "the court shall issue a notice to appear to

13 A-4778-16T6
compel the appearance of the eligible defendant at the detention

hearing." N.J.S.A. 2A:162-19(d)(2).

At the revocation hearing, the defendant shall be

represented by counsel, provided with all discovery, afforded

the right to testify and present witnesses, cross-examine

witnesses who appear and "present information by proffer or

otherwise." R. 3:26-2(d)(2). The CJRA does not set forth the

State's burden of proof at the revocation hearing, but Rule

3:26-2(d)(1) provides that the State need only prove the

violation of a condition of release by a preponderance of the

evidence. However,

upon a finding that the eligible defendant
while on release has violated a restraining
order or condition of release, or upon a
finding of probable cause to believe that
the eligible defendant has committed a new
crime while on release, [the court] may not
revoke the eligible defendant's release and
order that the eligible defendant be
detained pending trial unless the court,
after considering all relevant circumstances
including but not limited to the nature and
seriousness of the violation or criminal act
committed, finds clear and convincing
evidence that no monetary bail, non-monetary
conditions of release or combination of
monetary bail and conditions would
reasonably assure the eligible defendant’s
appearance in court when required, the
protection of the safety of any other person
or the community, or that the eligible
defendant will not obstruct or attempt to
obstruct the criminal justice process.

14 A-4778-16T6
 [N.J.S.A. 2A:162-24 (emphasis added); see
also R. 3:26-2(d)(1).]

Thus, N.J.S.A. 2A:162-24 conditions revocation of release and

pretrial detention on a finding by clear and convincing evidence

that no conditions of release will reasonably assure the three

goals of the Act. In other words, even after the State proves a

violation, the court must still consider whether under all

relevant circumstance, the clear and convincing evidence

proffered by the State requires detention. The CJRA does not

allow for detention based solely on a finding that the defendant

violated the terms of release.

Although the CJRA and Rule 3:26-2 are silent regarding the

procedure to be followed at a revocation hearing, we conclude

that the State's proffer of the Pretrial Services violation

report alone may be sufficient to establish, by a preponderance

of the evidence, that a violation occurred. We reach this

conclusion for several reasons.

In State v. Ingram, 230 N.J. 190, 213 (2017), the Court

held that at the initial detention hearing under the CJRA, the

State may establish probable cause by proffer without producing

a live witness. The probable cause standard, which applies to

initial detention hearings and revocation hearings based upon

the commission of a new offense, and the preponderance standard,

which is applicable to revocations based on violations of

15 A-4778-16T6
conditions, are similar in nature and precede the ultimate

finding of whether clear and convincing evidence supports

detention. Compare State v. Gibson, 218 N.J. 277, 292 (2014)

(explaining that probable cause is a well-grounded suspicion

that a crime has been committed), with State v. Williams, 93

N.J. 39, 78 (1983) (providing: "Preponderance of evidence . . .

is evidence sufficient to generate a belief that the conclusion

advanced is likely. It has been stated in terms of reasonable

probability.") (citations omitted).

Further, the CJRA makes no distinction between a motion to

detain filed immediately following arrest or at a subsequent

time. See N.J.S.A. 2A:162-19(a) (explaining that a motion to

detain may be filed at any time before or after release).

Indeed, a motion for revocation pursuant to N.J.S.A. 2A:162-24

is simply a motion to detain with the added requirement that (1)

the State prove probable cause that the defendant committed a

new crime, or prove by a preponderance of the evidence that the

defendant violated a release term or restraining order; and (2)

the nature and severity of the new crime or the violation, in

addition to all other circumstances, clearly and convincingly

establishes that detention is appropriate.

16 A-4778-16T6
 Under the federal release revocation statute, which is

somewhat different from N.J.S.A. 2A:162-24, the court may revoke

release upon motion by the government if the judge

(1) finds that there is —

(A) probable cause to believe
that the person has committed a
Federal, State, or local crime while on
release; or

(B) clear and convincing evidence
that the person has violated any other
condition of release; and

(2) finds that—

(A) based on the factors set
forth in [18 U.S.C.A. § 3142(g)], there
is no condition or combination of
conditions of release that will assure
that the person will not flee or pose a
danger to the safety of any other
person or the community; or

(B) the person is unlikely to
abide by any condition or combination
of conditions of release.[4]

[18 U.S.C.A. § 3148(b).]

Federal courts take a similar approach and allow the government

to prove a release-term violation by proffer. United States v.

LaFontaine, 210 F.3d 125, 131 (2nd Cir. 2000); United States v.

Aron, 904 F.2d 221, 227 (5th Cir. 1990); United State v. Davis,

4
Unlike the federal statute, the CJRA does not authorize
pretrial detention based upon a finding that the defendant is
unlikely to abide by any conditions of release.

17 A-4778-16T6
845 F.2d 412, 415 (2nd Cir. 1988). C.f. Ingram, supra, 230 N.J.

at 205 (explaining that because the CJRA is similar to its

federal counterpart, New Jersey courts should "give careful

consideration to the federal case law that interprets the Bail

Reform Act," 18 U.S.C.A. §§ 3141 to 3156).

Lastly, we reject the argument, explicitly made by White

and implicitly made by Bostic, that the State must prove a

defendant's violation of a condition of release was purposeful

or intentional. Nothing in the CJRA or our Court Rules supports

that claim. However, evidence that the violation is the result

of inadvertence, negligence or is otherwise excusable is clearly

a "relevant circumstance[]" in weighing "the nature and

seriousness of the violation," and ultimately whether the

evidence clearly and convincingly demonstrates detention is

warranted in light of all other relevant circumstances.

N.J.S.A. 2A:162-24.5

5
In a somewhat analogous circumstance, our Criminal Code
explicitly provides that the State must either (1) establish
probable cause that the defendant committed a new crime while on
probation, or (2) "inexcusably failed to comply with a
substantial requirement imposed as a condition" of probation at
a violation of probation (VOP) hearing. N.J.S.A. 2C:45-3(a)(4)
(emphasis added). If the alleged violation is a failure to pay
a fine or make restitution, the court must find a willful
violation. N.J.S.A. 2C:45-3(a)(4). We note further that VOP
hearings must be on written notice to the defendant, who has the
right "to hear and controvert the evidence against him, to offer
evidence in his defense, and to be represented by counsel."
(continued)

18 A-4778-16T6
 We now apply these basic principles to the facts presented

in these two appeals.

II.

As to defendant White, we first address the judge's

reliance in part upon the "no release" recommendation made by

Pretrial Services in the PSA generated when defendant was

arrested in January. As noted, the State never sought detention

at that time, but, in reaching his revocation decision, the

judge considered Pretrial Services' recommendation as prima

facie evidence sufficient to overcome the presumption of

release. R. 3:4A(b)(5).

Before us, defendant argues that the prima facie evidence

provision only applies to the initial detention decision, and

the State contends that the provision is inapplicable to a

release revocation hearing because the presumption of release

only applies at the initial detention hearing. We disagree with

both parties and conclude that, in the circumstances of this

case, where the court never made an initial detention decision,

(continued)
N.J.S.A. 2C:45-4. And, the State may rely on a proffer of
evidence or hearsay to meet its burden. State v. Reyes, 207
N.J. Super. 126, 138 (App. Div.), certif. denied, 103 N.J. 499
(1986). We note, however, that the Court recently heard
argument as to whether the trial court erred in accepting
hearsay testimony that the defendant committed a new offense at
the defendant's violation of probation hearing. State v. Noah
Mosley, Docket No. A-24-16 (argued November 28, 2017).

19 A-4778-16T6
the judge properly considered Pretrial Services' recommendation

as prima facie proof overcoming the presumption of release.

Initially, Rule 3:4A(b)(5) codifies the CJRA's presumption

of a defendant's release, except for those crimes to which a

presumption of detention applies. See N.J.S.A. 2A:162-18(b)

(presumption of release); N.J.S.A. 2A:162-19(b)(1) and (2)

(rebuttable presumption of detention for certain crimes). The

Rule also permits, but does not require, the judge to consider

the Pretrial services recommendation against release as prima

facie evidence sufficient to overcome the presumption. R.

3:4A(b)(5); see also See State v. C.W., 449 N.J. Super. 231, 262

(App. Div. 2017) (noting consideration of the recommendation as

prima facie evidence to rebut the presumption of release is

discretionary). N.J.S.A. 2A:162-19(a) provides that a motion to

detain may be filed at any time prior to trial, and the Rule

does not limit its application to motions filed prior to the

initial hearing.

We find further reason to reject the State's position in

Article 1, paragraph 11, of our Constitution, the amendment that

preceded enactment of the CJRA, which provides: "All persons

shall, before conviction, be eligible for pretrial release."

Furthermore, N.J.S.A. 2A:162-15 requires that the CJRA "shall be

liberally construed to effectuate the purpose of primarily

20 A-4778-16T6
relying upon pretrial release by non-monetary means to

reasonably assure" its goals.

We specifically do not address a situation where the court

initially rejects the PSA recommendation of "no release" and

releases the defendant on conditions.6 In such situations, the

CJRA requires the court entering an order "contrary to a

recommendation made" in the PSA to explain in writing its

decision to release. N.J.S.A. 2A:162-23(a)(2). We recognize

that the court's subsequent invocation of Rule 3:4A(b)(5) to

surmount the presumption of release raises the very real

possibility of inconsistent decision-making following re-

litigation of the same or similar issues. See State v. K.P.S.,

221 N.J. 266, 276 (2015) ("The law-of-the-case doctrine 'is a

non-binding rule intended to prevent relitigation of a

previously resolved issue' in the same case.") (citing Lombardi

v. Masso, 207 N.J. 517, 538 (2011)). Here, however, the State

never sought defendant's detention so the judge never considered

6
We tread carefully because of the Court's pending decision in
State v. S.N., Docket No. A-60-16 (argued on September 11,
2017), where the use of Pretrial Services' recommendation of no
release as prima facie evidence under Rule 3:4A(b)(5) was raised
during argument before the Court, and State v. Hassan Travis,
Docket No. A-7-17 (argued on November 29, 2017), where Pretrial
Services' recommendation in the context of the Rule was squarely
considered.

21 A-4778-16T6
the PSA's recommendation of "no release" prior to the revocation

hearing.

Defendant White argues that the judge "misapplied the law

on revocation of pretrial release," essentially contending that

any violations proven during the revocation hearing were

insufficient to establish by clear and convincing evidence that

detention was required. He underscores that the violations did

not include another arrest for a crime, contact with the victim,

or appearance at the location of the crime. Further, he

appeared at every court proceeding and reported to Pretrial

Services as required. In short, he claims that there was no

basis to find he posed a risk to the community or the

administration of justice, or that he would fail to appear in

court when required. We choose not to address those arguments

because reversal is required for other reasons that follow, and

defendant may renew those and other arguments on the record

produced at the remand hearing we now order.

As noted, the CJRA requires that a defendant receive proper

notice of the revocation hearing. N.J.S.A. 2A:162-19(d)(2).

Here, on July 7, both the prosecutor and defense counsel

believed the revocation hearing on the State's motion was to

take place on Monday, July 10. The judge said the "notice of

violation and order" of the court set July 7 as the date.

22 A-4778-16T6
However, the notice of violation in the record, filed in support

of the State's motion, does not set the date; the referenced

court order is also not in the record. Moreover, the State's

notice of motion, which is in the record, was not served on

defense counsel until July 6, making it unlikely that the

hearing was set for the next day.

In short, the record does not reasonably support the

conclusion that defendant was on notice that the hearing was to

take place on July 7. This is amply borne out by defense

counsel's later assertion that defendant mistakenly reported to

Pretrial Services on July 7 and only appeared in court because

he was told on that day by Pretrial Services to report to court.

The failure to provide proper notice was particularly

prejudicial in this case because the judge denied defendant's

reasonable request to delay the hearing until the following

Monday. The judge did not provide an explanation for denying

the adjournment request, although we may surmise that he was

concerned about defendant's alleged prior violations and the

second violations report, filed less than one month after the

earlier June 5 court hearing.

However, Rule 3:26-2(d)(2) clearly provides that a

defendant has the right to call witnesses and present evidence

at a release revocation hearing. Here, defendant made clear

23 A-4778-16T6
that he intended to call his mother, who was unavailable on July

7 but would be available on July 10, to explain the problems he

continued to have with his EMD and to testify that defendant had

returned to her home. He also wished to produce evidence that

his work required him to be at certain locations outside of his

home, including those detected by satellite. This evidence, if

believed by the judge, certainly rebutted the State's evidence

regarding "the nature and seriousness of the violation."

N.J.S.A. 2A:162-24.

We do not suggest that a judge should surrender his or her

broad discretion to control the revocation hearing and limit the

testimony and evidence that is relevant. However, federal

courts have recognized that the government's sole reliance on a

proffer at the revocation hearing may affect the probative value

and weight of the evidence on the ultimate decision of whether

detention is appropriate. See LaFontaine, supra, 210 F.3d at

132 (noting that while the government may proceed by proffer, it

usually does not rely solely on a proffer where its request to

revoke release is premised upon danger to the community); Aron,

supra, 904 F.2d at 227 ("The inability of the defendant to

cross-examine a declarant is relevant to the probative value of

the proffered evidence . . . ."). It follows that a defendant's

ability pursuant to Rule 3:26(d)(2) to call witnesses and

24 A-4778-16T6
produce evidence to rebut the State's revocation proofs has

increased significance when the only proof of a violation is the

report of Pretrial Services, as it was in this case.

The denial of the adjournment under these circumstances was

a mistaken exercise of the judge's discretion.7 See C.W., supra,

449 N.J. Super. at 255 ("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.") (citing State v. Baynes,

148 N.J. 434, 444 (1997)). We therefore reverse and vacate the

detention order, and remand the matter to the trial court to

conduct a new hearing on the State's motion to revoke White's

release.

Although the CJRA requires a previously released defendant

to remain so pending the detention hearing, N.J.S.A. 2A:162-

19(d)(2), we do not order defendant's immediate release in this

case. If the State wishes to proceed on its motion to revoke

7
We reject the State's suggestion, made at oral argument, that
defendant's challenge to the denial of his adjournment request
was not properly before us because it was contained in a
footnote in his brief. See Sullivan v. Port Auth. of N.Y. and
N.J., 449 N.J. Super. 276, 281 (App. Div. 2017) (explaining that
arguments raised in a footnote will not be considered on
appeal). In arguing that the evidence did not clearly and
convincingly establish that detention was appropriate, defendant
repeatedly referenced throughout his brief the contrary evidence
that may have been produced, but was not, because the
adjournment request was denied.

25 A-4778-16T6
defendant's release, it shall notify the judge and defense

counsel forthwith, and the judge shall provide notice and

conduct the revocation hearing within ten days of our judgment,

or otherwise release defendant subject to appropriate

conditions. We do not retain jurisdiction.

III.

As to defendant Bostic, we initially express grave concerns

about the procedures employed prior to the actual revocation

hearing. Defendant was arrested when he reported to Pretrial

Services for the first time as ordered. He had not committed

another crime and there was no outstanding arrest warrant, see

N.J.S.A. 2A:162-23(a)(1)(b) (permitting the "immediate issuance

of a warrant for the . . . defendant's arrest" for "violating a

condition of release"), yet defendant was taken into custody

immediately and not brought before a judge for five days. At

oral argument before us, the prosecutor could not identify what

authority permitted the State to proceed in such fashion, and we

can find none ourselves.

The CJRA requires that a defendant must be provided with

"all conditions . . . to which the release is subject" "in a

manner sufficiently clear and specific to serve as a guide for

. . . defendant's conduct." N.J.S.A. 2A:162-23(a)(1)(a). There

is no evidence that the prosecutor actually supplied the

26 A-4778-16T6
addresses of the victims, as the judge asked her to do, and the

actual order, which mistakenly stated, "Defendant shall come

within 1000 feet of any victim inclusion zones[,]" does not

provide them. In short, nothing in the record demonstrates that

Pretrial Services or the State ever supplied defendant with the

parameters of the victim exclusion zones.

At the revocation hearing, defendant denied any knowledge

of the victims' addresses. The State only argued that defendant

must have known the victims' home addresses because they worked

in his business. Although the judge specifically found that

defendant had entered the exclusion zone for two of the victims,

the judge did not find that defendant had actually known where

or how extensive those zones were. Under these circumstances,

the State failed to prove by a preponderance of the evidence

that defendant had violated that condition of his release.

The judge also found that defendant had violated another

condition of his release by "fail[ing] to remain in [his] home

as required." In fact, the first judge, on remand, had

specifically ordered defendant to report to Pretrial Services,

which was located in a town different from defendant's

residence, upon his release from jail or the next day if he were

released late in the day. Defendant complied by reporting the

27 A-4778-16T6
day after the remand hearing and, in doing so, had to leave his

home.

The State's proof at the revocation hearing was limited to

the Pretrial Services' violation report and the Google Map. The

Google map, which is in the record, does not demonstrate that

defendant was wandering or "roaming the city of Vineland most of

the day," contrary to the assertion in the violation report.

Therefore, the State failed to prove by a preponderance of the

evidence this second purported violation of a condition of

release.

On Bostic's appeal, we reverse, vacate the detention order

and order his immediate release on appropriate conditions

following a hearing, which the Law Division judge shall conduct

forthwith.

Reversed and remanded in both appeals.

28 A-4778-16T6