RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3745-17T6
A-0358-18T6
STATE OF NEW JERSEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
March 29, 2019
v.
APPELLATE DIVISION
ANTOINE MCCRAY,
Defendant-Respondent.
_____________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SAHAILE GABOUREL,
Defendant-Respondent.
Argued February 26, 2019 – Decided March 29, 2019
Before Judges Yannotti, Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 17-11-
1346 in A-3745-17.
On appeal from an interlocutory order of Superior
Court of New Jersey, Law Division, Hudson County,
Complaint No. W-2018-3276-0906 in A-0358-18.
Claudia Joy Demitro, Deputy Attorney General,
argued the cause for appellant (Gurbir S. Grewal,
Attorney General, attorney; Claudia Joy Demitro, of
counsel and on the briefs).
Laura B. Lasota, Assistant Deputy Public Defender,
argued the cause for respondents (Joseph E. Krakora,
Public Defender, attorney; Laura B. Lasota, of counsel
and on the briefs).
The opinion of the court was delivered by
YANNOTTI, P.J.A.D.
The State appeals from orders entered by the Law Division, which
dismissed charges under N.J.S.A. 2C:29-9(a) that defendants purposely or
knowingly disobeyed orders of pretrial release, entered by judges pursuant to
the Criminal Justice Reform Act (CJRA or the Act), N.J.S.A. 2A:162-15 to -
26. We address both appeals in this opinion. For the reasons that follow, we
reverse.
I.
A. State v. McCray
On April 16, 2017, Antoine McCray was charged in complaint-warrant
W-2017-1274-2004 with second-degree robbery, during which force was used
and bodily injury inflicted, in violation of N.J.S.A. 2C:15-1(a)(1). The State
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2
thereafter filed a motion for his pretrial detention pursuant to the CJRA. After
conducting a hearing, the court denied the State's motion and entered an order
dated April 27, 2017, which stated that McCray was released pretrial subject to
certain non-monetary conditions. One of the conditions was that defendant
"[s]hall not commit any offense during the period of release."
On August 29, 2017, McCray was charged in complaint-warrant W-
2017-0904-1205 with the disorderly persons offense of theft by unlawful
taking, N.J.S.A. 2C:20-3(a); fourth-degree credit card theft, N.J.S.A. 2C:21-
6(c)(1); third-degree identity theft, N.J.S.A. 2C:21-17(a)(1); and fourth-degree
forgery, N.J.S.A. 2C:21-1(a)(2). He also was charged in complaint-summons
S-2017-1155-1205 with fourth-degree contempt of court under N.J.S.A.
2C:29-9(a), for violating the court's April 27, 2017 pretrial release order.
On November 16, 2017, a grand jury returned Indictment No. 17-11-
1345, which charged McCray with conspiracy to use a credit card fraudulently,
contrary to N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:21-6(h), and other offenses.
The grand jury also returned Indictment No. 17-11-1346, charging McCray
with contempt of court under N.J.S.A. 2C:29-9(a) for violating the pretrial
release order. The indictments alleged that he committed the offenses on or
about August 29, 2017.
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On December 7, 2017, a grand jury returned Indictment No. 17-12-1391,
which charged McCray and others with third-degree conspiracy to use a credit
card fraudulently, on or about August 2, 2017. In addition, on December 13,
2017, a grand jury returned Indictment No. 17-12-1418, which charged
McCray and another person with several counts of third-degree conspiracy to
use a credit card fraudulently, on or about August 4, 2017.
On February 5, 2018, McCray pled guilty to four counts of third-degree
conspiracy to use a credit card fraudulently, specifically count four of
Indictment No. 17-11-1345, count three of Indictment No. 17-12-1391, and
counts one and three of Indictment No. 17-12-1418. He also pled guilty to
fourth-degree contempt of court as charged in Indictment No. 17-11-1346.
At the plea hearing, McCray provided a factual basis for the pleas.
Regarding the contempt charge, he admitted that the court previously had
entered an order permitting his pretrial release, and as a condition of his
release, he was "supposed to remain offense free." He also admitted that he
committed the offenses for which he was pleading guilty while he was on
pretrial release.
The judge who accepted the plea advised counsel that he had concerns
about the validity of the contempt charge. The judge stated that on the
sentencing date, he would determine whether to reject the plea to that offense
A-3745-17T6
4
and dismiss the indictment on the ground that it was "defective as a matter of
law." The judge questioned whether the State could charge a defendant with
contempt under N.J.S.A. 2C:29-9(a) based on a violation of the terms of a
pretrial release order. The judge directed the parties to file briefs addressing
the issue.
The judge heard oral argument on April 13, 2018, and filed a written
opinion that day, in which the judge ruled that the contempt charge must be
dismissed. In his opinion, the judge stated that neither the CJRA nor the court
rules implementing the Act authorize a charge of contempt under N.J.S.A.
2C:29-9(a) as a sanction for violating conditions in a pretrial release order.
The judge also reasoned that the constitutional protections against double
jeopardy preclude the State from punishing a defendant for violating a
provision in a pretrial release order, based on the commission of a new
offense, and also punishing defendant for committing that offense.
The judge entered an order dated April 13, 2018, dismissing the
indictment with prejudice. The judge denied the State's motion for a stay of
the order pending appeal, and later sentenced defendant on the other charges to
which he pled guilty. The judge imposed concurrent terms of four years of
incarceration, each without a period of parole ineligibility. The State's appeal
followed.
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B. State v. Gabourel
Defendant Sahaile Gabourel was charged under complaint-warrant W-
2018-2988-0906 with seven charges related to the possession and distribution
of a controlled dangerous substance (CDS), including second-degree
possession of a CDS with intent to distribute within 500 feet of a public park,
N.J.S.A. 2C:35-7.1(a); and third-degree possession of a CDS with intent to
distribute within a school zone, N.J.S.A. 2C:35-7(a).
In an affidavit of probable cause, an officer of the Jersey City Police
Department (JCPD) stated that on July 10, 2018, he observed Gabourel
distribute heroin to another individual, in exchange for currency. The officer
arrested Gabourel and found that he was in possession of twenty-nine glassine
bags of heroin.
On July 11, 2018, the State filed a motion under the CJRA for
Gabourel's pretrial detention. The judge conducted a hearing on July 16, 2018,
and denied the State's motion. The judge stated that he was "going to put a
curfew in place" and instructed Gabourel on this condition. The judge told
Gabourel he had to remain in his residence from 6:00 p.m. to 6:00 a.m. The
judge stated, "If you go out you're violating the terms of your release." The
judge asked Gabourel if he understood those terms, and he replied, "Yes."
A-3745-17T6
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The judge entered an order dated July 16, 2018, ordering Gabourel's
release on his own recognizance, subject to certain conditions. Among other
conditions, the order stated that he must report to Pretrial Services
telephonically and in person once every other week, and that Gabourel "[s]hall
comply with the following curfew: 6pm-6am."
On July 23, 2018, at 8:09 p.m., two officers of the JCPD observed
Gabourel standing on a street corner in Jersey City, in violation of the curfew.
The officers apparently were aware of the curfew requirements of the pretrial
release order, and determined that Gabourel was violating the order. The
officers stopped and arrested him. He had three Percocet pills in his
possession.
Gabourel was charged in complaint-warrant W-2018-3276-0906 with
fourth-degree contempt of court, N.J.S.A. 2C:29-9(a); and possession of a
prescription legend drug, N.J.S.A. 2C:35-10.5(a)(1), a disorderly persons
offense. The State then filed a motion pursuant to N.J.S.A. 2A:162-24 for
revocation of Gabourel's pretrial release.
The judge thereafter conducted a hearing on the State's motion. The
judge found that Gabourel had disobeyed the pretrial release order by violating
the curfew. The judge also found that the State met its burden for revocation
of defendant's pretrial release. The judge found, however, that the CJRA did
A-3745-17T6
7
not permit a contempt charge for violating the pretrial release order. The
judge entered an order dated August 9, 2018, dismissing the charge. We
thereafter granted the State's motion for leave to appeal.
II.
On appeal, the State argues that the trial court judges erred by dismissing
the contempt charges against defendants. The State contends the judges erred
by finding that the CJRA and the court rules implementing the Act do not
permit the State to charge a defendant with contempt under N.J.S.A. 2C:29 -
9(a) if the defendant violates a pretrial release order.
"[I]ndictments are presumed valid and should be dismissed only upon
the clearest and plainest ground and only if palpably defective." State v.
Schenkolewski, 301 N.J. Super. 115, 137 (App. Div. 1997) (citing State v. N.J.
Trade Waste Ass'n, 96 N.J. 8, 8-19 (1984); State v. Weleck, 10 N.J. 355, 364
(1952); State v. Engel, 249 N.J. Super. 336, 359-60 (App. Div. 1991)). "A
trial court . . . should not disturb an indictment if there is some evidence
establishing each element of the crime to make out a prima facie case." State
v. Morrison, 188 N.J. 2, 12-13 (2006) (citing State v. Hogan, 144 N.J. 216, 236
(1996); State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987)).
We will not reverse an order dismissing an indictment unless shown to
be a mistaken exercise of discretion. State v. Warmbrun, 277 N.J. Super. 51,
A-3745-17T6
8
59-60 (App. Div. 1994) (quoting N.J. Trade Waste Ass'n, 96 N.J. at 18-19).
"However, if a trial court's . . . decision is based upon a misconception of the
law," we owe that "decision no particular deference." State v. Lyons, 417 N.J.
Super. 251, 258 (App. Div. 2010) (citing Manalapan Realty, LP v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Here, it is undisputed that judges had entered orders pursuant to the
CJRA releasing defendants pretrial on conditions. Among other conditions,
McCray was ordered not to commit a new offense while on release, and
Gabourel was ordered to comply with a curfew. Thereafter, McCray
committed new offenses and Gabourel violated the curfew. Thus, the State
had prima facie evidence that defendants purposely or knowingly disobeyed
judicial orders. See N.J.S.A. 2C:29-9(a).
The State contends that the trial judges erred by finding that the CJRA
does not permit the State to charge defendants with contempt under N.J.S.A.
2C:29-9(a) for violating a condition of pretrial release. In response,
defendants argue that the plain language of the CJRA and its legislative history
show that the Legislature rejected contempt as a remedy for violating a
condition of release.
"The overriding goal of all statutory interpretation 'is to determine as
best we can the intent of the Legislature, and to give effect to that intent.'"
A-3745-17T6
9
State v. S.B., 230 N.J. 62, 67 (2017) (quoting State v. Robinson, 217 N.J. 594,
604 (2014)). We first consider the language of the statute because the
statutory language is "the best indicator" of legislative intent. State v. Gandhi,
201 N.J. 161, 176 (2010) (citing DiProspero v. Penn, 183 N.J. 477, 492
(2005)).
We must interpret the words of a statute in accordance with "their
ordinary meaning and significance." DiProspero, 183 N.J. at 492 (citing Lane
v. Holderman, 23 N.J. 304, 313 (1957)). We also must consider the relevant
provisions of the statute "in context with related provisions so as to give sense
to the legislation as a whole." Ibid. (citing Chasin v. Montclair State Univ.,
159 N.J. 418, 426-27 (1999)).
"If the plain language chosen by the Legislature 'leads to a clearly
understood result' that is consistent with the legislative objectives of the statute
and its context with related provisions, we apply the law as written."
Robinson, 217 N.J. at 604 (first quoting State v. Hudson, 209 N.J. 513, 529
(2012); and then citing State v. Rangel, 213 N.J. 500, 509 (2013)). We may
not "rewrite a plainly written" statute "or presume that the Legislature intended
something other than that expressed by way of the plain language."
DiProspero, 183 N.J. at 492 (quoting O'Connell v. State, 171 N.J. 484, 488
(2002)).
A-3745-17T6
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The CJRA states that "[a] prosecutor may file a motion . . . at any time"
for the pretrial detention of an eligible defendant who is charged with any of
the crimes or offenses enumerated in N.J.S.A. 2A:162-19(a). N.J.S.A.
2A:162-19(a). An "eligible defendant" is defined in the Act as "a person for
whom a complaint-warrant is issued for an initial charge involving an
indictable offense or a disorderly persons offense unless otherwise provided
in" the Act. N.J.S.A. 2A:162-15. The CJRA states that a court may order an
eligible defendant's pretrial detention if it finds by
clear and convincing evidence that no amount of
monetary bail, non-monetary conditions of pretrial
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, and that the eligible defendant will not
obstruct or attempt to obstruct the criminal justice
process.
[N.J.S.A. 2A:162-18(a)(1).]
If the court determines that the defendant should not be detained pretrial,
it shall order the defendant's release on his or her personal recognizance if it
"finds that the release would reasonably assure the eligible defendant's
appearance in court when required, the protection of the safety of any other
person or the community, and that the eligible defendant will not obstruct or
attempt to obstruct the criminal justice process." N.J.S.A. 2A:162-17(a). If
A-3745-17T6
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the court does not make that finding, the court may order the eligible
defendant's release subject to the following conditions:
(a) the eligible defendant shall not commit any
offense during the period of release;
(b) the eligible defendant shall avoid all contact with
an alleged victim of the crime;
(c) the eligible defendant shall avoid all contact with
all witnesses who may testify concerning the offense
that are named in the document authorizing the
eligible defendant's release or in a subsequent court
order; and
(d) any one or more non-monetary conditions as set
forth in [N.J.S.A. 2A:162-17(b)(2)].
[N.J.S.A. 2A:162-17(b)(1).]
The non-monetary conditions in N.J.S.A. 2A:162-17(b)(2) include
requiring the eligible defendant to: "remain in the custody of a designated
person . . . ;" maintain or seek employment; "maintain or commence an
educational program;" "abide by specified restrictions on personal
associations, place of abode, or travel;" "comply with a specified curfew;" and
"refrain from possessing a firearm, destructive device, or other dangerous
weapon[.]" N.J.S.A. 2A:162-17(b)(2)(a), (b), (c), (d), (f), and (g).
The CJRA also states that if the court releases an eligible defendant
pretrial, it must inform the defendant of:
A-3745-17T6
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(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.
The failure of the court to notify the eligible
defendant of any penalty or consequence for violating
a condition of release as required by this subparagraph
shall not preclude any remedy authorized under the
law for any violation committed by the eligible
defendant.
[N.J.S.A. 2A:162-23(a)(1).]
In addition, the CJRA sets forth the grounds upon which a court may
revoke an eligible defendant's pretrial release and order detention. N.J.S.A.
2A:162-24 states:
Upon motion of a prosecutor, when an eligible
defendant is released from custody before trial
pursuant to [N.J.S.A. 2A:162-17 or N.J.S.A. 2A:162-
22], the court, 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, 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
A-3745-17T6
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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.
The rules adopted by the Supreme Court to implement the CJRA also
discuss the trial court's authority to address violations of the conditions of
release. Rule 3:26-2(d)(1) states that on a motion by the prosecutor
the court, upon a finding, by a preponderance of the
evidence, that the defendant while on release violated
a restraining order or condition of release, or upon a
finding of probable cause to believe that the defendant
has committed a new crime while on release, may
revoke the defendant's release and order that the
defendant be detained pending trial where 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 defendant's appearance in court when required, the
protection of the safety of any other person or the
community, or that the defendant will not obstruct or
attempt to obstruct the criminal justice process.
Although N.J.S.A. 2A:162-24 and Rule 3:26-2(d)(1) do not state that
criminal prosecution for contempt is one of the potential sanctions for a
defendant's failure to comply with a pretrial release order, the CJRA and the
court rule do not preclude the State from charging a defendant with contempt
under N.J.S.A. 2C:29-9(a) in these circumstances. The statute and the rule set
A-3745-17T6
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forth the actions a court may take if a released defendant violates a condition
of release. The statute and the rule do not address the State's authority to
charge a defendant with criminal contempt based on a violation of a pretrial
release order because the statute and the rule deal with the court's authority.
Indeed, the court does not have authority to charge a defendant with a
criminal offense. The prosecutor has the discretion to prosecute those whom
the prosecutor believes has violated the law. See State v. Hermann, 80 N.J.
122, 127 (1979) (citations omitted). Furthermore, our "State Constitution
guarantees the grand jury a central role in the enforcement of the criminal law
of this State." Hogan, 144 N.J. at 227 (citing N.J. Const. art. 1, ¶ 8).
"Specifically, the grand jury must determine whether the State has established
a prima facie case that a crime has been committed and that the accused has
committed it." Ibid. (citations omitted).
Moreover, as stated previously, N.J.S.A. 2A:162-23 requires a court to
inform an eligible defendant of all conditions of release. This section of the
Act provides, however, that a court's failure to do so does "not preclude any
remedy authorized under the law for any violation committed by the eligible
defendant." Ibid.
On appeal, the State argues that the term "remedy" in N.J.S.A. 2A:162-
23 includes a criminal contempt charge. The more plausible interpretation,
A-3745-17T6
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however, is that the term "remedy" includes the actions a court may take to
address a defendant's failure to comply with the conditions of release. Because
the court does not have the authority to charge a defendant with a criminal
offense, it is not one of the remedies referred to in N.J.S.A. 2A:162-23.
Nevertheless, the statute does not preclude the State from charging a defendant
with contempt under N.J.S.A. 2C:29-9(a) for violating a pretrial release order.
Defendants argue, however, that because there is no provision in the
CJRA that specifically authorizes a criminal contempt charge, the Legislature
intended that the remedies in N.J.S.A. 2A:162-23, including revocation of
release, are the only sanctions that may be imposed for a violation of a
condition of pretrial release. In support of this argument, defendants rely upon
the legislative history of the CJRA. A court may consider such evidence when
endeavoring to discern the Legislature's intent. DiProspero, 183 N.J. at 492-93
(quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004)).
Our Supreme Court has noted that "[i]n many respects, the text of the
[CJRA] follows the federal Bail Reform Act of 1984 [(BRA)], 18 U.S.C.A. §§
3141 to 3156, and the District of Columbia's statutory scheme for pretrial
detention, D.C. Code. §§ 23-1321 to -1333." State v. Robinson, 229 N.J. 44,
56 (2017). The Court pointed out that one of the sponsors of the legislation
stated in a public hearing that "the Legislature looked to both laws among
A-3745-17T6
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others when it framed New Jersey's reform measure." Ibid. (citing Publ.
Hearing Before S. Law & Pub. Safety Comm., S. Con. Res. 128 2 (2014)).
The federal BRA and the D.C. Code authorize the filing of criminal
contempt charges for certain violations of conditions of pretrial release. See
18 U.S.C. § 3148(a) and (c) (stating that a defendant who has violated a
condition of pretrial release "is subject to a revocation of release, an order of
detention, and a prosecution for contempt of court"); D.C. Code § 23-1329(a)
(providing that a defendant "who has violated a condition of release shall be
subject to revocation of release, an order of detention, . . . and prosecution for
contempt of court").
Defendants argue that in passing the CJRA, the Legislature intentionally
omitted a similar provision authorizing prosecution for contempt of court for a
violation of a condition of pretrial release. In this regard, we note that when
the legislation was first introduced, N.J.S.A. 2A:162-24 stated that:
In addition to revocation of release as authorized by
this section, a violation of a condition of pretrial
release imposed pursuant to [the CJRA] or any other
law, may subject the defendant to civil contempt,
criminal contempt, forfeiture of bail, or any
combination of these sanctions and any other
sanctions authorized by law.
[S. 946/A. 1910 (2014).]
A-3745-17T6
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In addition, when the legislation was first introduced, N.J.S.A. 2A:162-
15 stated that the Act:
shall be liberally construed to effectuate the purpose
of relying upon contempt of court proceedings or
criminal sanctions instead of financial loss to ensure
the appearance of the defendant, that the defendant
will not pose a danger to any person or the
community, and that the defendant will comply with
all conditions of bail.
[S. 946/A. 1910 (2014).]
These provisions were deleted from the versions of N.J.S.A. 2A:162-15
and N.J.S.A. 2A:162-24 passed and enacted into law. There is, however, no
statement by a sponsor of the legislation or any legislative committee that
explains why the references to criminal contempt initially proposed for
inclusion in N.J.S.A. 2A:162-15 and N.J.S.A. 2A:162-24 were deleted.
In the absence of such a statement or some other evidence of legislative
intent, it is reasonable to conclude that the members of the Legislature
believed there was no need to include a provision in the CJRA similar to the
provisions in the federal BRA and D.C. Code authorizing a criminal contempt
prosecution for a violation of a pretrial release order. It is also reasonable to
infer that the members of the Legislature believed a pretrial release order was a
judicial order under N.J.S.A. 2C:29-9(a) and that statute sufficiently addressed
the potential criminal consequences of a violation of a pretrial release order.
A-3745-17T6
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III.
The State further argues that New Jersey's case law confirms its ability
to charge a defendant with contempt under N.J.S.A. 2C:29-9(a) if the
defendant purposely or knowingly violates a condition in a pretrial release
order. In support of that argument, the State relies upon Gandhi, 201 N.J. 161.
In Gandhi, the defendant became obsessed with a woman who rebuffed
his desire for a romantic and sexual relationship. Gandhi, 201 N.J. at 171.
The woman filed a complaint against the defendant charging harassment, but
later withdrew the complaint. Ibid. The trial court nevertheless "issued an
oral restraining order" directing the defendant not to have any contact with the
woman. Ibid.
The defendant violated the order and he was charged with stalking under
N.J.S.A. 2C:12-10(c). Id. at 172-73. The trial court set bail and included a no-
contact directive in the bail order. Id. at 173. Later, after the defendant
violated that order, the court increased the amount of bail and expanded the
scope of the no-contact directive. Ibid. Thereafter, the defendant continued to
violate the court's orders. Ibid.
The State filed additional charges against the defendant, and the charges
included numerous counts of contempt of court under N.J.S.A. 2C:29-9(a),
based on the defendant's violations of the no-contact requirements of the
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court's orders. Id. at 173-74. The defendant was tried and convicted of third-
degree stalking and contempt of court. Id. at 174.
On appeal, the defendant argued that the no-contact orders and the bail
orders with no-contact provisions, were an insufficient factual basis for finding
that he engaged in stalking in violation of a court order, which elevated the
stalking charge from a fourth-degree to a third-degree offense. Id. at 188. The
Supreme Court rejected that argument, noting that "[w]e insist on compliance
with judicial orders to promote order and respect for the judicial process." Id.
at 190.
The Court added that, "The no-contact orders in [the] defendant's bail
orders did not lose their character as judicial no-contact orders merely because
bail consequences could attach for their violation. As judicial no-contact
orders, [the] defendant was obligated to strictly comply with them." Ibid. The
Court also stated that the defendant's violation of the bail orders "provid[ed]
the bases for the numerous contempt charges filed against him." Id. at 191.
The Court's reasoning in Gandhi applies here. Conditions set forth in a
pretrial release order "d[o] not lose their character" as a judicial order merely
because other consequences, such as revocation of release, could attach for
their violation. See id. at 190. We expect defendants to strictly comply with
the court's pretrial release orders. We therefore conclude that a pretrial release
A-3745-17T6
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order is a "judicial order" under N.J.S.A. 2C:29-9(a), and a defendant who
purposely or knowingly violates the conditions in the order may be charged
with contempt under N.J.S.A. 2C:29-9(a).
Defendants argue, however, that case law addressing violations of court
orders in other contexts shows that the Legislature did not intend that a
defendant who violates conditions in a pretrial release order would be subject
to prosecution for criminal contempt. Defendants cite State v. Williams, 234
N.J. Super. 84 (App. Div. 1989), in support of this argument.
In Williams, after the defendant was convicted of certain offenses, the
trial court sentenced him to three years of probation and time served, but
ordered that the defendant shall have no contact with his ex-wife and certain
other individuals. Id. at 86. The defendant violated the no-contact condition
and he was charged with three counts of contempt of court under N.J.S.A.
2C:29-9(a), as well as certain other offenses. Id. at 87.
We held that a violation of a condition of probation may not be charged
as criminal contempt. Id. at 93. We observed that the probation statute allows
the court to place "statutory conditions" in the order placing a defendant on
probation, and the consequence of a violation is specified in N.J.S.A. 2C:45-
3(a)(4). Id. at 90. "We . . . dr[e]w a distinction between an order direct[ing]
A-3745-17T6
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. . . a defendant . . . to do or refrain from doing a particular act[,]" which could
be the basis of a contempt of court charge, "and a conditional order which
either states the ramifications of its violation or has such consequences
established by law." Id. at 91.
We also stated that "[c]ontempt of court should not be superimposed as
an additional remedy in a probation violation setting if the act that occasions
the violation is not otherwise criminal." Ibid. We concluded "that when the
Legislature expressly stated in N.J.S.A. 2C:45-3(a)(4) that the sanction for a
violation of probation (other than for the inherent criminality of the act) would
be a revocation of probation, it intended that a defendant would [not] be
subject to a new indictment for contempt in addition to the punishment for the
original offense." Id. at 93.
We are convinced that defendants' reliance upon Williams is misplaced.
In Williams, the court held that a violation of probation could not be the basis
of a criminal contempt charge because in the probation statute the Legislature
had prescribed the sanctions the court may impose for violations, which may
include "forfeiture of [the defendant's] conditional exemption from punishment
for the original crime" rather than additional punishment for the probation
violation. Id. at 92 (quoting Williams v. State, 528 A.2d 507, 508 (Md.
1987)).
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This reasoning does not apply to violations of a pretrial release order
because the CJRA is not a substantive criminal enactment, and pretrial
detention under the Act is not punishment. See United States v. Salerno, 481
U.S. 739, 746-48 (1987) (holding that federal BRA is a regulatory measure
that does not provide for punishment). In N.J.S.A. 2A:162-24, the Legislature
has prescribed the sanctions the court may apply to address a violation of a
condition of release, but these sanctions do not include punishment.
In further support of their argument, defendants rely upon State ex. rel.
S.S., 367 N.J. Super. 400 (App. Div. 2004), aff'd, 183 N.J. 20 (2005). In that
case, a juvenile was adjudicated delinquent for contempt after she violated the
court's order, which required that she obey the rules of her home and school.
Id. at 403-04. We reversed the adjudication of contempt. Id. at 416.
We noted that while N.J.S.A. 2C:29-9(a) appeared to apply literally to
the juvenile's conduct, applying the statute to the violation of the order to obey
the rules of home and school would not be consistent with "the overriding goal
of the juvenile justice system[, which] is rehabilitation, not punishment." Id.
at 406-07 (citations omitted). We held that while we understood "that the
court must have some means of enforcing orders involving juveniles who
repeatedly run away from home or are chronically truant[,]" a charge under
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N.J.S.A. 2C:29-9 "is not the appropriate or intended means of enforcement."
Id. at 413.
The Supreme Court affirmed our judgment, substantially for the reasons
stated in our opinion. S.S., 183 N.J. at 21-22. The Court concluded that in
view of the legislative goals of the criminal contempt statute and the State's
juvenile justice system, the trial court should not have subjected the juvenile to
an adjudication of delinquency based on the conduct at issue. Ibid. (quoting
S.S., 367 N.J. Super. at 413).
Defendants' reliance upon the decisions in S.S. is misplaced. Those
decisions are based on an assessment of the Legislature's purposes of the
criminal contempt statute and the statutes governing the juvenile justice
system. The reasoning does not apply to violations of pretrial release orders.
The goal of the criminal contempt statute is to promote compliance with
judicial orders by punishing those who purposely or knowingly fail to comply
with those orders. See N.J.S.A. 2C:29-9(a). The purpose of the CJRA, as
stated in N.J.S.A. 2A:162-15, is to rely primarily
upon pretrial release by non-monetary means to
reasonably assure an eligible defendant's appearance
in court when required, the protection of the safety of
any other person or the community, that the eligible
defendant will not obstruct or attempt to obstruct the
criminal justice process, and that the eligible
defendant will comply with all conditions of release,
while authorizing the court, upon motion of a
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prosecutor, to order pretrial detention of the eligible
defendant when it finds clear and convincing evidence
that no condition or combination of conditions can
reasonably assure the effectuation of these goals.
Permitting the State to charge an eligible defendant with criminal
contempt under N.J.S.A. 2C:29-9(a) based on a violation of a pretrial release
order furthers the goals of the criminal contempt statute and the CJRA. A
criminal contempt charge would provide the State with an additional means to
address a violation of a condition in the pretrial release order. It would also
deter defendants from violating conditions of release, thereby avoiding the
potential revocation of release and detention pretrial.
IV.
On appeal, defendants argue that the trial courts did not err by ordering
the dismissal of the criminal contempt charges because they were not properly
notified that they could be charged with contempt if they violated a condition
of pretrial release. We disagree.
"No one shall be punished for a crime unless both that crime and its
punishment are clearly set forth in positive law." In re DeMarco, 83 N.J. 25,
36 (1980). "The question ultimately is one of fairness . . . [and t]he test is
whether the statute gives a person of ordinary intelligence fair notice that his
conduct is forbidden and punishable by certain penalties." Id. at 37.
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25
We are convinced that N.J.S.A. 2C:29-9(a) provides sufficient notice
that a person who purposely or knowingly violates a judicial order may be
found guilty of a crime of the fourth degree and punished accordingly. The
statute provided defendants with "fair notice that [their] conduct [was]
forbidden and punishable by certain penalties." See DeMarco, 83 N.J. at 37.
In support of their argument, defendants rely upon State v. D.G.M., 439
N.J. Super. 630 (App. Div. 2015). In that case, a complainant obtained a final
restraining order (FRO) against the defendant pursuant to the Prevention of
Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, which "'prohibited' [the]
defendant 'from having any (oral, written, personal, electronic or other) fo rm
of contact or communication with'" the complainant. Id. at 633.
Thereafter, the defendant and the complainant attended their child's
soccer game. Id. at 634. The defendant sat near the complainant and recorded
the game and the complainant on his cell phone. Ibid. The State charged the
defendant with criminal contempt under N.J.S.A. 2C:29-9(b), and he was
found guilty. Ibid. On appeal, we held that the defendant had engaged in a
form of "communication" with the complainant. Id. at 640. We decided,
however, that defendant's conviction for contempt could not stand because he
could not have known his specific conduct violated the FRO and could result
in a criminal prosecution. Id. at 642.
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26
D.G.M. does not support defendants' arguments. Here, McCray's pretrial
release order states that he "[s]hall not commit any offense" while released. In
addition, Gabourel's pretrial release order states that he "[s]hall comply with"
the curfew from 6:00 p.m. to 6:00 a.m. Therefore, the pretrial release orders
provided defendants with notice of the conditions imposed, and the statute
provided defendants with adequate notice they could be charged with criminal
contempt if they purposely or knowingly violated the orders.
V.
McCray argues that even if this court finds the CJRA permits the State
to charge criminal contempt based on a violation of a pretrial release order, the
trial court's order dismissing his charge should be affirmed. McCray contends
that the trial court correctly found that the double jeopardy protections of the
United States and New Jersey Constitutions preclude the State from
prosecuting him for contempt, based on a violation of the condition that he
commit no new offenses while on pretrial release, and also prosecuting him for
committing those new offenses. We disagree.
The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution states that no person shall "be subject for the same offense
to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Our State
Constitution provides that: "No person shall, after acquittal, be tried for the
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27
same offense." N.J. Const. art. 1, ¶ 11. Our Supreme Court "has consistently
interpreted the State Constitution's double-jeopardy protection as coextensive
with the guarantee of the federal Constitution." State v. Miles, 229 N.J. 83, 92
(2017) (citing State v. Schubert, 212 N.J. 295, 304 (2012); State v. Dively, 92
N.J. 573, 578 (1983); State v. Barnes, 84 N.J. 362, 370 (1980)).
The Double Jeopardy Clause protects persons "against (1) 'a second
prosecution for the same offense after acquittal,' (2) 'a second prosecution for
the same offense after conviction,' and (3) 'multiple punishments for the same
offense.'" Ibid. (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
To determine whether a second prosecution is for the "same offense," we apply
the "same-elements tests" first announced in Blockburger v. United States, 284
U.S. 299, 304 (1932). Miles, 229 N.J. at 96. Therefore, "where the same act
or transaction constitutes a violation of two distinct statutory provisions, the
test to be applied . . . is whether each provision requires proof of a fact which
the other does not." Id. at 93 (quoting Blockburger, 284 U.S. at 304).
In Miles, the defendant sold marijuana to an undercover police officer on
the streets of Camden. Id. at 86-87. The defendant was charged with
possession of marijuana with intent to distribute and possession of a CDS with
intent to distribute in a school zone. Id. at 87. The defendant was separately
charged in municipal court with the disorderly persons offense of possession
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of marijuana. Ibid. The municipal charge was later amended to loitering to
possess marijuana. Ibid. The defendant pled guilty to the loitering charge, and
thereafter moved to dismiss the school zone offense on double jeopardy
grounds. Id. at 88.
In Miles, the Supreme Court held that going forward it would apply the
"same-elements" test under Blockburger, rather than the "same-evidence" test
in Illinois v. Vitale, 447 U.S. 410, 421 (1980), in which the Supreme Court of
the United States found "that a second prosecution could be barred if it relied
on the same evidence used to prove the earlier charge." Miles, 229 N.J. at 93.
Our Supreme Court held that loitering to possess marijuana and
possession of CDS with intent to distribute in a school zone were not the
"same offense" for double jeopardy purposes. Id. at 99-100. The Court
pointed out that the school zone offense required proof of two elements that
were not required for the loitering offense. Id. at 100.
The Court held, however, that under the "same-evidence" test, the
successive prosecution for the school zone offense was barred because it was
based on the same evidence that supported the plea and conviction on the
loitering charge. Ibid. The Court stated that the "same-evidence" test applied
because that test was in effect when the defendant committed the offenses. Id.
at 99. The Court determined that the "same-elements" standard would be
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applied to offenses committed after the date of the opinion, which was May 16,
2017. Id. at 83, 99.
The "same-elements" test applies here because McCray allegedly
committed the offenses after Miles was decided. Applying that test, we
conclude that double jeopardy principles do not preclude McCray's prosecution
for violation of the condition in the court's pretrial release order, based on his
commission of new offenses, and prosecution of him for those substantive
offenses.
As we stated previously, McCray pled guilty to four counts of
conspiracy to engage in the fraudulent use of credit cards in violation of
N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:21-6(h). That offense does not require
proof that McCray "purposely or knowingly" disobeyed a judicial order, which
is required by N.J.S.A. 2C:29-9(a). This is so even where, as in this case,
McCray was charged with violating the order by committing the credit-card
offenses while on pretrial release. Therefore, conspiracy to use a credit card
fraudulently and violation of a judicial order are not the "same offense" for
double jeopardy purposes.
In its opinion in the McCray case, the trial court cited United States v.
Dixon, 509 U.S. 688, 691 (1993), in which the Court considered whether the
Double Jeopardy Clause precluded the subsequent prosecution of two
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30
defendants who had previously been "tried for criminal contempt of court for
violating court orders that prohibited them from engaging in conduct that was
later the subject of criminal prosecution." In Dixon, the Court addressed cases
involving two defendants, Dixon and Foster. Id. at 691-92.
Dixon had been arrested for murder and released pursuant to the D.C.
pretrial detention statute with a "no-new offense" condition. Id. at 691 (citing
D.C. Code § 23-1329(a)). Thereafter, Dixon was arrested and charged with the
commission of certain drug offenses. Ibid. A court later found Dixon guilty
of criminal contempt and sentenced him to 180 days in jail. Id. at 692. Dixon
thereafter filed a motion to dismiss the indictment charging him with the drug
offenses, arguing that the second prosecution on the drug charges violated the
Double Jeopardy Clause. Ibid.
In Foster's case, the court had issued a civil protection order, which
"required that he not 'molest, assault, or in any manner threaten or physically
abuse'" his estranged wife. Ibid. Foster's estranged wife filed motions
alleging that he violated the order by threatening and assaulting her. Ibid. A
court found Foster guilty of four counts of criminal contempt as well as the
assaults, but found him not guilty of the other charges. Id. at 693. The
Government thereafter charged "Foster with simple assault[;] . . . threatening
to injure another[;] . . . and assault with intent to kill[.]" Ibid. Foster moved to
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dismiss the indictment, and argued that the second prosecution violated the
Double Jeopardy Clause. Ibid.
Justice Scalia, joined by Justice Kennedy, concluded that the Double
Jeopardy Clause barred Dixon's second prosecution on the drug charges, and
also barred Foster's second prosecution for simple assault. Id. at 697-702
(plurality). Justice Scalia stated, however, that the other crimes for which
Foster was prosecuted were not barred because they were not specifically
addressed in the order of protection and those charges "passed" the
Blockburger test. Id. at 700-02. Justice Scalia found that Dixon's prosecution
on the drug charge "did not include any element not contained" in the
contempt offense, and Foster's indictment for assault was "based on the same
event" that formed the basis for his prior contempt conviction. Id. at 700.
Justice White, joined by Justice Stevens, concluded that the Double
Jeopardy Clause barred the successive prosecutions of Dixon and Foster on all
of the substantive offenses. Id. at 720-41 (White, J., concurring in part,
dissenting in part). Justice Souter also agreed that the successive prosecutions
of all counts was barred. Id. at 743-63 (Souter, J., concurring in part,
dissenting in part).
Chief Justice Rehnquist, joined by Justices O'Connor and Thomas,
concluded that the Double Jeopardy Clause did not preclude the government
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32
from prosecuting Dixon and Foster on any of the substantive offenses. Id. at
714 (Rehnquist, C.J., concurring in part, dissenting in part). The Chief Justice
disagreed with Justice Scalia's application of the Blockburger test. Ibid.
The Chief Justice stated the prosecutions were not barred because a
defendant convicted of the substantive offenses "has not necessarily satisfied
any statutory element of contempt." Id. at 718-19. The Chief Justice
emphasized that Blockburger requires a court to "focus[] on the statutory
elements of the offenses charged, not on the facts that must be proved under
the particular indictment at issue[.]" Id. at 716-17.
Justice Blackmun agreed that the Double Jeopardy Clause did not bar the
government from prosecuting Dixon and Foster on all charges. Id. at 741-43
(Blackmun, J., concurring in part, dissenting in part). Justice Blackmun noted
that: "The purpose of contempt is not to punish an offense against the
community at large but rather to punish the specific offense of disobeying a
court order." Id. at 742.
We note that after Dixon, many states have disagreed on the manner in
which the Blockburger test should be applied when deciding whether criminal
contempt based on a commission of a new offense and the related substantive
crimes are the same offense for double jeopardy purposes. Some states have
followed Justice Scalia's approach. See, e.g., State v. Johnson, 676 So. 2d 408,
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33
410-11 (Fla. 1996); Commonwealth v. Yerby, 679 A.2d 217, 219-221 (Pa.
1996). Other states have followed Chief Justice Rehnquist's approach. See,
e.g., State v. Bernacki, 52 A.3d 605, 613 (Conn. 2012); People v. Wood, 698
N.Y.S.2d 122, 126-27 (App. Div. 1999), aff'd, 742 N.E.2d 114 (N.Y. 2000).
In Miles, our Supreme Court did not address the merits of either
approach. Rather, the Court applied the "same-elements" test under
Blockburger, and compared the elements of the offenses at issue to determine
if they were the same. See Miles, 229 N.J. at 93, 96.
Applying the analysis required by Miles, we conclude that the Double
Jeopardy Clause does not bar McCray's prosecution for criminal contempt,
based on the commission of new offenses, and the new offenses. The elements
of criminal contempt and the new offenses are not the same offense for double
jeopardy purposes. Thus, the Double Jeopardy Clause does not preclude the
State from charging McCray with contempt under N.J.S.A. 2C:29-9(a) and the
related offenses.
We therefore conclude that in the CJRA, the Legislature did not preclude
the State from charging a defendant with contempt under N.J.S.A. 2C:29 -9(a)
for violating a condition in the court's pretrial release order. A pretrial release
order is a judicial order for purposes of N.J.S.A. 2C:29-9(a), and an eligible
defendant may be charged under that statute if he or she purposely or
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34
knowingly violates the order. Furthermore, defendants were clearly informed
of the conditions in the pretrial release order, and defendants had adequate
notice they could be charged with criminal contempt if they violated the order.
In addition, double jeopardy principles do not bar the State from prosecuting
McCray for criminal contempt.
Reversed and remanded for further proceedings in conformity with this
opinion. We do not retain jurisdiction.
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