STATE OF NEW JERSEY VS. SHIRAZ K. KHAN (19-06-1418, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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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