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NOT FOR PUBLICATION WITHOUT THE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-4896-18T6
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHIRAZ K. KHAN,
Defendant-Appellant.
_________________________
Argued October 2, 2019 – Decided October 23, 2019
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 19-06-1418.
Robin Kay Lord argued the cause for appellant.
John J. Santoliquido, Assistant Prosecutor, argued the
cause for respondent (Damon G. Tyner, Atlantic
County Prosecutor, attorney; John J. Santoliquido, of
counsel and on the brief).
PER CURIAM
Defendant appeals from an order entered by the Law Division on June 11,
2019, which states that defendant shall be detained pretrial pursuant to the
Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. We affirm.
The record shows that on April 3, 2019, Egg Harbor Township police
officers conducted a stop of a car defendant was driving due to certain motor
vehicle violations, specifically, a fictitious registration, multiple license plate
covers, and tinted windows. Defendant was the only occupant of the car. He
admitted the car belonged to him, and no one else had entered or driven the car.
According to the police, defendant consented to a search of the car.
The officers searched the vehicle and located seven Percocet pills, which
defendant stated were his. In an after-market compartment in the car, commonly
known as a "trap," the officers found promethazine hydrochloride and
approximately 11.2 ounces of a white powdery substance, which was determined
to be cocaine.
Defendant was charged in a complaint with first-degree
manufacturing/distribution of five ounces or more of a controlled dangerous
substance (CDS) or analog (cocaine); in violation of N.J.S.A. 2C:35-5(a)(1);
third-degree possession of a CDS or analog (Percocet), in violation of N.J.S.A.
2C:35-10(a)(1); third-degree possession of a CDS or analog (promethazine
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hydrochloride), in violation of N.J.S.A. 2C:35-10(a)(1); and third-degree
possession of a CDS (cocaine), in violation of N.J.S.A. 2C:35-10(a)(1). In
addition, defendant was charged in another complaint with third-degree
distribution of a CDS or analog (cocaine) on or near school property, in violation
of N.J.S.A. 2C:35-7(a).
The State thereafter filed a motion for defendant's pretrial detention
pursuant to the CJRA. On April 16, 2019, the judge conducted a hearing and
placed an oral decision on the record. The judge stated that based on defendant's
prior criminal record, he faced a mandatory extended term of incarceration,
which could include a life sentence. The judge noted that there is a presumption
of detention under N.J.S.A. 2A:162-19(b), which defendant overcame by a
preponderance of the evidence.
The judge found, however, that the State had shown by clear and
convincing evidence that "no amount of monetary bail, non-monetary conditions
or combination thereof, would reasonably assure the defendant's appearance [in
court] when required, and the protection of the safety of any other persons or
the community, and that the defendant will not obstruct or attempt to obstruct
the criminal justice process." The judge accordingly entered an order which
required defendant's pretrial detention.
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Defendant appealed and argued the judge's findings that he had rebutted
the presumption of detention and that the State had established grounds for his
pretrial detention were inconsistent and contrary to the applicable statutes and
court rule. We entered an order dated May 17, 2019, remanding the matter to
the trial court:
to address, preferably in writing, defendant's argument
that the court impermissibly and illogically used the
very same proofs in its April 16, 2019 oral ruling . . . to
find that defendant had rebutted the presumption of
incarceration under N.J.S.A. 2A:162-19(b), while
simultaneously finding that the State had overcome that
showing by clear and convincing evidence under
N.J.S.A. 2A:162-19(e)(2). The findings of fact and
conclusions of law in the court's written companion
order of April 16, 2019 does not discuss presumptions.
The court shall clarify or reconcile its analysis and
determine if analysis of presumptions is even
appropriate.
On June 7, 2019, the judge filed a letter opinion stating that he had
considered the proofs in light of the presumptions in the CJRA. The judge found
that defendant had rebutted the presumption of detention in N.J.S.A. 2A:162-
19(b) by a preponderance of the evidence, specifically, the recommendation for
release with conditions in the Public Safety Assessment (PSA) issued by the
Pretrial Services Program (PSP).
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The judge further found that upon consideration of the totality of the
circumstances, the State had established grounds for defendant's pretrial
detention by clear and convincing evidence. The judge determined that no
amount of monetary bail, non-monetary conditions, or a combination thereof
would ensure defendant's appearance, the safety of any person or the public, or
the integrity of the criminal justice system. The judge entered an order dated
June 11, 2019, which continued defendant's pretrial detention. This appeal
followed.
The CJRA permits the State to file a motion in the trial court for the
pretrial detention of a defendant who is charged with certain offenses. N.J.S.A.
2A:162-19(a). When the State seeks the pretrial detention of a defendant who
has not been indicted, the court first must determine whether there is probable
cause the defendant committed the charged offense. If the court finds probable
cause that the defendant committed murder in violation of N.J.S.A. 2C:11-3, or
any crime for which the defendant would be eligible for an ordinary or extended
term of life imprisonment,
there shall be a rebuttable presumption that the eligible
defendant shall be detained pending trial because no
amount of monetary bail, non-monetary condition 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
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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. 2C:162-19(b).]
The presumption of pretrial detention may be rebutted by a preponderance
of the proof "provided by the eligible defendant, the prosecutor, or from other
materials submitted to the court." N.J.S.A. 2A:162-19(e)(2). Furthermore, "if
the presumption is rebutted by sufficient proof, the prosecutor shall have the
opportunity to establish that the grounds for pretrial detention exist[.]" Ibid. To
establish grounds for pretrial detention, the prosecutor must show by clear and
convincing evidence
that no amount of monetary bail, non-monetary
conditions or combination of monetary bail and
conditions will reasonably assure the eligible
defendant's appearance in court when required, the
protection of the safety or 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:162-19(e)(3).]
Here, it is undisputed that defendant has been charged with an offense for
which he would be eligible for an ordinary or extended term of life
imprisonment. Therefore, under the CJRA, there is a rebuttable presumption
that defendant should be detained pretrial. N.J.S.A. 2A:162-19(b). Here, the
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judge found that the presumption had been rebutted by the recommendation in
the PSA, which rated defendant as a "4" for risk of Failure to Appear, and "5"
for risk of New Criminal Activity, but recommended defendant's release with
weekly reporting.
The judge determined, however, that the State had established grounds for
defendant's pretrial detention, as permitted by N.J.S.A. 2A:162-19(e)(3). The
judge stated that the nature and circumstances of the charged offense is "a very
weighty factor." The judge found that due to the nature and degree of the
offenses and defendant's criminal record, there is a significant risk of flight.
The judge noted that the record shows that during the stop and later search,
the officers found 11.2 ounces of cocaine hidden in the trap in the car, which
"bespeaks an intent to distribute[.]" The judge stated that "[n]arcotics in this
amount also endanger[] public safety."
The judge also stated that the State had "very weighty evidence" to support
the charges, which include the personal observations of the officers involved in
the stop; defendant's statement acknowledging possession of the vehicle and the
Percocet in the car; and the CDS paraphernalia the officers had recovered. The
judge acknowledged that defendant had raised issues regarding the search.
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Moreover, the judge noted that he had considered defendant's history and
characteristics, specifically, his character, physical and mental condition, and
family ties. The judge considered defendant's lengthy criminal history. The
judge stated that taking all of these factors into consideration, other forms of
release with conditions would not be adequate to protect the community and
assure defendant's presence when required. The judge stated that defendant's
"escalating conduct" makes it clear defendant presents a risk to the community
and a risk of reoffending.
In addition, the judge addressed the nature and seriousness of the risk that
defendant would obstruct or attempt to obstruct the criminal justice process if
released pretrial. The judge noted that defendant has a history of failing to
appear. The judge also stated that defendant's use of a hidden compartment to
"secret narcotics" shows a level of sophistication, which "bespeaks [the] ability
and the ongoing likelihood that [defendant] will attempt to obstruct the criminal
justice process."
The judge found that the State had established grounds for defendant's
pretrial detention by clear and convincing evidence. The judge noted that while
he had relied upon some of the same proofs in determining that defendant had
rebutted the presumption of detention, and that the PSA had helped defendant
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overcome that presumption, the PSA failed to consider "a number of weighty
facts." The judge concluded that considering the PSA, as well as the weight of
the evidence, the nature of the charged offenses, and the pertinent facts and
circumstances, defendant should be detained pretrial.
On appeal, defendant argues that the burden-shifting standards in the
CJRA and the trial court's application of those standards are internally
inconsistent. Defendant contends the trial court relied upon the same facts and
arguments to reach the conclusions that he rebutted the presumption of detention
under N.J.S.A. 2A:162-19(b), and that the State established grounds for his
detention, under N.J.S.A. 2A:162-19(e)(3). We disagree.
As noted, in his opinion, the judge explained that he based his finding that
defendant had rebutted the presumption of detention upon the recommendation
for release in the PSA. The judge also explained that he based his finding that
the State had established grounds for detention upon all of the relevant facts and
circumstances.
Thus, the court did not rely upon the same facts and arguments to support
its findings that defendant rebutted the presumption of detention and that the
State had established by clear and convincing evidence the grounds for
defendant's pretrial detention. We therefore reject defendant's contention that
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the burden-shifting provisions of the CJRA are internally inconsistent and that
they were inconsistently applied in this case.
Defendant also argues that the fact that he has been charged with a crime
for which he is eligible for an extended term of life imprisonment is the reason
for the presumption of detention under N.J.S.A. 2A:162-19(b). He therefore
contends the court may not rely upon the nature of that offense or the potential
life sentence in deciding whether the State has established grounds for detention
under N.J.S.A. 2A:162-19(e)(3). Again, we disagree.
Nothing in the CJRA precludes the court from taking the nature of the
offense and potential sentence into consideration in determining whether the
presumption of detention under N.J.S.A. 2A:162-19(b) applied and in deciding
whether the State has proven by clear and convincing evidence that defendant
should be detained pretrial, as permitted by N.J.S.A. 2A:162-19(e)(3). This is
not impermissible double-counting.
Indeed, N.J.S.A. 2A:162-20 expressly provides that in determining
whether the State has met its burden of showing whether a defendant should be
detained pretrial, the court may take into account:
a. The nature and circumstances of the offense charged;
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b. The weight of the evidence against the eligible
defendant, except that the court may consider the
admissibility of any evidence sought to be excluded;
c. The history and characteristics of the eligible
defendant, . . .
d. The nature and seriousness of the danger to any other
person or the community that would be posed by the
eligible defendant's release, if applicable;
e. The nature and seriousness of the risk of obstructing
or attempting to obstruct the criminal justice process
that would be posed by the eligible defendant's release,
if applicable; and
f. The release recommendation of the pretrial services
program . . .
Defendant also argues that the record does not support the trial court's
determination that the State established grounds for his pretrial detention. He
contends that in the CJRA the Legislature intended to limit pretrial detention to
only the most serious cases where the presumption of detention under N.J.S.A.
2A:162-19(b) applies. He asserts that this case does not fall within that
category.
Defendant contends he established he has substantial ties to the
community, was employed, and only had one previous failure to appear. He
asserts that the State failed to show that he was a flight risk and that such an
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assumption cannot be made in every case where the defendant faces a lengthy
prison term.
Defendant further argues that the judge improperly relied upon
speculation and assumptions when he stated that defendant's release would pose
a risk to the community. He also asserts that the record provides no basis for
the assumption that he would obstruct or attempt to obstruct the criminal justice
process.
We note that the decision on whether to order a defendant's pretrial
detention is committed to the sound discretion of the trial court and will not be
reversed unless shown to be a mistaken exercise of discretion. State v. S.N.,
231 N.J. 497, 515 (2018) (citing State v. C.W., 449 N.J. Super. 231, 255 (App.
Div. 2017)). To show an abuse of discretion, the defendant must establish that
the trial court's decision "rest[s] on an impermissible basis," "was based upon a
consideration of irrelevant or inappropriate factors," shows that the court
"fail[ed] to take into consideration all relevant factors," and represents "a clear
error of judgment." Id. at 515-16 (quoting C.W., 449 N.J. Super. at 255).
Here, the judge noted that defendant was found with 11.2 ounces of
cocaine, which was concealed in a compartment or "trap" in his car. The judge
found that possession of CDS in this amount bespeaks an intent to distribute and
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poses a potential danger to the community. The judge further found that
defendant has a lengthy criminal history and other forms of release had proven
inadequate to protect the community. The judge also found that because
defendant is eligible for an extended term of life imprisonment, he is "an
extreme flight risk."
In addition, the judge found that defendant had attempted to frustrate the
criminal justice process by using license plate covers, a fictitious vehicle
registration, and a hidden compartment to conceal the CDS. The judge stated
that defendant's use of a hidden compartment in the car to conceal the CDS
shows a level of sophistication, which indicates defendant has the ability to
obstruct the criminal justice process and is likely to do so.
We are convinced there is sufficient evidence in the record to support the
trial court's findings of fact. The findings are not based on speculation or
unsupported assumptions. We conclude the order requiring defendant's pretrial
detention is not a mistaken exercise of discretion.
Affirmed.
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