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NOT FOR PUBLICATION WITHOUT THE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-3553-19T6
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DAVID A. PINEIRO,
Defendant-Respondent.
___________________________
Submitted June 30, 2020 – Decided July 20, 2020
Before Judges Messano, Vernoia and Rose.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Passaic County,
Complaint No. W-2020-00201-1602.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for appellant (Mark Niedziela, Assistant
Prosecutor, of counsel and on the briefs).
Adrienne D. Edward, attorney for respondent.
PER CURIAM
The State appeals from an order granting defendant David A. Pineiro's
motion to reopen his detention hearing and releasing defendant from detention
pending disposition of the second-degree eluding and disorderly persons
possession of marijuana charges for which the court ordered his detention in the
first instance. Because the court did not make sufficient findings supporting its
decision to reopen the detention hearing and release defendant pending trial, we
vacate the court's order and remand for further proceedings.
I.
On February 9, 2020, Clifton police arrested and charged defendant with
second-degree eluding, N.J.S.A. 2C:29-2(b), and the disorderly persons offense
of possession of marijuana, N.J.S.A. 2C:35-10(a)(4). The State moved for his
detention pending trial.
At the detention hearing, the judge summarized a police report describing
the incident leading to defendant's arrest. The report stated that on February 9,
2020, at 9:00 p.m., a Clifton police officer observed defendant driving a
motorcycle at a high rate of speed and weaving in and out of traffic. The
motorcycle did not have illuminated taillights or a license plate. Defendant's
actions caused other motorists on the roadway to "slam on their brakes to avoid
a collision" with defendant.
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2
The officer activated the emergency lights and siren on his marked police
vehicle and pursued defendant, who increased his speed, maneuvered through
traffic on Route 3, and traveled a "substantial distance" before crashing his
motorcycle, suffering injuries, and being transported to the hospital. Defendant
was found in possession of a marijuana cigarette. The State reported defendant's
license was suspended and his motorcycle was neither registered nor insured.
The Public Safety Assessment (PSA) showed defendant was twenty-six
years old, and the assessment included a score of two out of six for defendant's
risk of failure to appear and a score of three out of six for his risk of new criminal
activity. The PSA revealed defendant had convictions in 2011 and 2015 for
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and
received five-year prison terms for each conviction. Defendant also had 2018
and 2019 convictions for third-degree distribution of a controlled dangerous
substance within 1,000 feet of school property, N.J.S.A. 2C:35-7(a), and
received probationary terms for each. In August 2019, defendant was convicted
of a disorderly persons offense, possession of a controlled dangerous substance ,
N.J.S.A. 2C:35-10(c). Defendant had a violation of probation in December
2019, and he was on probation for his 2018 and 2019 convictions when he was
arrested on the eluding charge.
A-3553-19T6
3
The PSA revealed defendant did not have any prior failures to appear for
court proceedings. The PSA included a recommendation of release with
monthly reporting.
The State argued defendant presented a risk of flight based on the nature
of the eluding charge and defendant's prior record and because defendant was
on probation when the eluding offense was allegedly committed. The State also
asserted defendant's prior record and his actions during his alleged flight from
the police established that he posed a risk to the safety of the community if
released.
Defendant's counsel asserted defendant was recently married, lived with
his wife and his mother, and had significant community ties. Counsel also
claimed defendant had a history of employment, defendant was about to
commence new full-time employment, and defendant recently completed an
educational program. Counsel explained defendant did not stop initially in
response to the police pursuit because the motorcycle was loud and defendant
could not hear the police car siren, and later defendant did not stop because the
police were very close and he thought they would strike him. Counsel also
argued defendant was concerned injuries he suffered in the crash were not
A-3553-19T6
4
diagnosed in the hospital and defendant did not feel safe he would receive proper
treatment in jail.
In a detailed bench decision, the judge found clear and convincing
evidence no conditions of release would reasonably assure defendant's
appearance in court and the safety of the community. See N.J.S.A. 2A:162-
18(a)(2). The judge considered and addressed the information detailed in
N.J.S.A. 2A:162-20.1
1
N.J.S.A. 2A:162-20 provides that the court "may take into account" the
following information in making a detention decision:
a. The nature and circumstances of the offense charged;
b. The weight of the evidence against the
[presumptively] 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, including:
(1) the eligible defendant's character, physical and
mental condition, family ties, employment, financial
resources, length of residence in the community,
community ties, past conduct, history relating to drug
or alcohol abuse, criminal history, and record
concerning appearance at court proceedings; and
(2) whether, at the time of the current offense or arrest,
the eligible defendant was on probation, parole, or on
A-3553-19T6
5
More particularly, the court first considered the nature and circumstances
of the offense, explaining that defendant's actions in eluding the police and his
exposure to a ten-year prison sentence supports a finding he presents a
significant flight risk. 2 See N.J.S.A. 2A:162-20(a). Second, the court
considered the parties' proffers and found the weight of the evidence against
defendant, as detailed in the officer's incident report, was "very strong." See
N.J.S.A. 2A:162-20(b). The court explained the officer pursued defendant in a
marked police vehicle and defendant's conduct—speeding, evasive driving, and
other release pending trial, sentencing, appeal, or
completion of sentence for an offense under federal
law, or the law of this or any other state;
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 obtained using a risk assessment instrument
under N.J.S.A. 2A:162-25.
2
The court did not consider, and the State did not argue the court should
consider, that based on defendant's criminal history, he is eligible as a persistent
offender for an extended-term sentence of up to twenty years on the second-
degree eluding charge. See N.J.S.A. 2C:44-3(a).
A-3553-19T6
6
causing other drivers to "slam on their brakes in order to avoid" colliding with
him—placed others at a risk of harm.
Next, the court considered defendant's personal characteristics, his family
and community ties, and his employment. See N.J.S.A. 2A:162-20(c)(1). The
court noted defendant's prior criminal history, including his convictions and
mandatory prison sentences in 2011 and 2015 for weapons offenses, his more
recent 2018 and 2019 drug convictions, and his December 2019 violation of
probation.
Fourth, the court found defendant allegedly committed the eluding offense
while on probation for his prior drug conviction. See N.J.S.A. 2A:162-20(c)(2).
Fifth, the court found defendant posed a risk to the community because the
alleged eluding "went on for a substantial distance" during which defendant "put
individuals . . . at risk of having a car crash," and, as it turned out, a crash of
defendant's vehicle occurred. See N.J.S.A. 2A:162-20(d).
The court also found there was no evidence defendant posed a risk of
obstructing or attempting to obstruct the criminal justice process. See N.J.S.A.
2A:162-20(e). Last, the court considered the PSA's risk assessment scores and
recommendation defendant be released with monthly reporting. See N.J.S.A.
2A:162-20(f). The court disagreed with the PSA recommendation, finding
A-3553-19T6
7
defendant posed a "significant" flight risk because of his exposure to a ten-year
prison sentence on the eluding charge and the PSA recommendation did not
adequately account for the weight of the evidence, that defendant was found in
violation of probation in December 2019, and that defendant was serving
probationary sentences on both his 2018 and 2019 convictions when the alleged
eluding occurred.
The court concluded the State overcame the presumption of release by
clear and convincing evidence. The court determined there were no conditions
of release that could be imposed that would assure defendant would appear for
future court proceedings and that would protect the safety of the community.
The court entered an order granting the State's detention motion. Defendant did
not appeal from the court's order.
Defendant obtained new counsel and filed a motion for reconsideration of
the detention order. On March 3, 2020, a different judge heard the motion.
Defense counsel reprised the arguments made during the initial hearing and also
asserted defendant was unaware the police were pursuing him because his
motorcycle did not have mirrors and he was wearing a full helmet that prevented
him from hearing the police siren. The State argued defendant failed to provide
any justification for reopening his detention hearing under N.J.S.A. 2A:162 -
A-3553-19T6
8
19(f), nothing had changed since the prior judge issued the detention order, and
the evidence supported the first judge's findings and detention order.
The judge denied defendant's motion, finding defendant's arguments
presented issues for a jury, and that, because a conviction for second-degree
eluding would require imposition of a prison sentence, there was a risk
defendant would fail to appear at future court proceedings. The court concluded
it would "not reverse the" first judge's "finding."3 Defendant did not appeal from
the judge's order denying his motion for reconsideration.
On April 28, 2020, defendant filed a motion to reopen his detention
hearing. Relying on his counsel's certification; medical records from the jail;
and various Executive Orders, New Jersey Supreme Court orders, and
publications concerning the COVID-19 pandemic; defendant claimed the
pandemic, and his asthma condition, constituted a change in circumstances
3
It is unclear from the record whether the court considered defendant's motion
as one for reconsideration under Rule 4:49-2, or as a motion to reopen the
detention hearing under N.J.S.A. 2A:162-19(f). Defendant's counsel stated he
moved for reconsideration, the State argued defendant was not entitled to
"reopen" his detention hearing, and the judge did not identify the legal standard
he applied in denying the motion. We need not resolve the issue because
defendant does not appeal from the court's March 3, 2020 determination and
order.
A-3553-19T6
9
supporting his request to reopen his detention hearing. 4 Defendant's counsel
further asserted that application of health protocols and social distancing
standards are not feasible in correctional institutions and defendant is in
particular danger if he were to contract COVID-19. Defendant requested release
on his own recognizance pursuant to N.J.S.A. 2A:162-19(f), which provides for
the reopening of a detention hearing, and N.J.S.A. 2A:162-21(b), which
provides for temporary release from detention for a compelling reason.
In a May 8, 2020 letter brief, the State opposed defendant's motion to
reopen the record and argued "defendant [was] asking the Court to give undue
weight to the [COVID]-19 virus without considering the import the virus may
have on his risk of posing a danger to the community, obstructing justice, or
failing to appear in court." The State also claimed that because pretrial services
had suspended in-person reporting, "defendant would pose an even greater risk
to the community if he were released." The State urged the court to deny release
4
Defendant's April 9, 2020 records from his admission to the Bergen County
jail, to which he was transferred after first being incarcerated in the Passaic
County jail, showed defendant reported he had asthma; he used an inhaler twice
per day to treat the asthma; he had no prior hospitalizations for asthma; and he
did not experience asthma symptoms more than three times per month. The
medical practitioner assessed defendant as having "possible intermittent
asthma," determined defendant's asthma was under "fair to good control," and
cleared defendant for general population within the jail.
A-3553-19T6
10
because "no evidence [established] that [COVID-19] in and of itself will impact
the defendant's risk of posing a danger to the community, his obstructing justice
or his failing to appear in court."
After hearing argument on the motion, the same judge who denied
defendant's motion for reconsideration, made the following limited findings:
I am going to release [defendant] with conditions, and
I am doing so for the following reasons. Number one,
he did have a low score (indiscernible) PSA; two, we
don't have any failures to appear; three, he does suffer,
and the medical records indicate, that he does suffer
from asthma, which is a factor that makes him more
likely to contract [COVID-19] than those who don't.
While he may be being treated for it in the county jail,
the treatment is for his asthma. But treatment for
asthma, as far as I know, does not make one immune to
[COVID-19] so. And it does make him more prone to
getting it because he has asthma.
The court ordered defendant released to home confinement with weekly
telephonic reporting until the ban on in-person reporting was lifted, at which
time defendant would be required to report in person each week. The State
requested a stay pending appeal, and the court granted that request. The same
day the court entered a corresponding order. 5
5
The order referred to an attachment containing written findings and reasons;
however, no such findings and reasons were attached.
A-3553-19T6
11
On May 12, 2020, the State filed an emergent application for leave to
appeal. We granted the motion, continued the stay pending appeal, and included
the following instruction: "The State must address and identify with
particularity what specific measures are available in the County Detention
Facility to accommodate defendant's medical needs without exposing him to an
unreasonable risk of harm."
In response to that instruction, the State submitted a May 11, 2020,
certification from Warden Steven Ahrendt of the Bergen County Sheriff's
Office. The certification details the actions taken to address COVID-19 within
the Bergen County Jail (the facility).
According to Ahrendt, the facility is capable of housing 1200 inmates and
detainees. As of the date of the certification, "the [f]acility house[d] 123 male
and 6 female [United States Immigration and Customs Enforcement (ICE)]
detainees and a total of 230 county inmates." Each cell, except for those in the
mental health unit, is approximately ten feet by seven feet in size and has one
bunk bed for two inmates. "Apart from the beds, there is 70.6 square feet in the
cells." The mental health housing unit has four individual cells containing one
bed each, in addition to a large dormitory area with four rows of five bunk beds
(total of forty beds) that are "spaced apart."
A-3553-19T6
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The facility has a medical infirmary overseen by a medical doctor as well
as three part-time psychiatrists, one full-time and one part-time dentist, twelve
full-time nurses, and four full-time and three part-time licensed practical nurses.
"Due to the COVID-19 outbreak, additional Bergen County medical staff
are . . . on-site 24/7 to provide full coverage for all detainee/inmate medical
needs."
Ahrendt reported that, in response to COVID-19, the facility implemented
the following changes:
a. As of "March 13, 2020, all ICE detainee intake at the [f]acility has
been suspended indefinitely."
b. All county inmates are subject to a medical screening during intake,
which includes: assessment for fever and respiratory illness; and
questioning as to whether the inmate has been in contact in the past
two weeks with someone who has tested positive for the virus "and
whether they have traveled from or through area(s) with sustained
community transmission." Those with COVID-19 symptoms will
be isolated and possibly sent for testing. Those who test positive
will be isolated and treated at the facility unless they require
hospitalization, in which case they will be transferred to the local
hospital.
c. No social visits and tours are permitted. An inmate may meet with
an attorney so long as there is no contact and a glass partition
separates them. Phone conferences are permitted.
d. Prior to entering the facility, staff and vendors must undergo a
medical screening, which includes a temperature check. Those with
a temperature above 100 degrees Fahrenheit are not permitted in the
facility.
A-3553-19T6
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e. All staff must wear face masks inside the facility.
f. To comply with the [Center for Disease Control (CDC)] guidelines
on social distancing in correctional facilities, inmates must remain
inside their cells throughout the day except for a sixty-minute period
when six inmates at a time are permitted to leave their cells for
recreational activities and showering. The inmates "have 2643
square feet of space within the [f]acility available for recreational
use" and have "ample room for" "social distancing" without
"commingling."
g. If an inmate has COVID-19 symptoms or has tested positive for the
virus, the inmate must remain in his or her cell and "phones will be
made available in the housing unit for use by that inmate."
h. In evaluating and testing inmates, the facility follows CDC
guidelines. "As such, medical staff immediately evaluate any
detainees and inmates who complain of illness," and inmates may
make "daily sick calls as needed." Those with symptoms "will be
provided a surgical mask" and may, at the discretion of the Medical
Director, be transported to the hospital for evaluation.
i. Inmates testing positive who do not need to be hospitalized are
housed in the North 2 unit, which, as of March 30, 2020, has been
reserved exclusively for inmates who have tested positive or are
symptomatic. These inmates are housed individually in a cell with
their own personal toilet and sink. Those with symptoms are housed
on one side of the unit and those with confirmed tests are on the
other side. "There is approximately 30-40 feet between the known
positive cases and suspected positive cases in North 2. To date,
there are no ICE detainees who are housed in North 2 who are
symptomatic and there are three county inmates who are
symptomatic, but housed in Medical." One inmate who tested
positive was released from the facility on March 26, and another
inmate tested positive while at the hospital undergoing treatment for
an unrelated condition.
A-3553-19T6
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j. Asymptomatic inmates, excluding ICE detainees, who have been
exposed to the virus are housed, or "cohorted," in a unit together for
fourteen days. "If no new COVID-19 case develops in 14 days, the
cohorting of these detainees will terminate."
k. Two ICE detainees tested positive for the virus and both were
housed in the North 6 unit. As a result, all inmates in this unit were
cohorted.
l. The facility has increased cleaning. "All housing units are sanitized
no less than four times per day" and "[f]resh air is constantly
circulated by opening doors and utilizing handler/vents throughout
the day." To avoid congregating, all meals are eaten inside the cells.
Disinfectant spray, hand sanitizer, and soap is provided in every
unit. "The administration is encouraging both staff and the [f]acility
general population to use these tools often and liberally."
m. "The [f]acility provides education on COVID-19 to all staff,
detainees, and inmates to include the importance of hand washing
and hand hygiene, covering coughs with the elbow instead of with
hands, and requesting to seek medical care if they feel ill." Inmates
have "daily access to sick call," and signs posted in English and
Spanish throughout the facility advise inmates and staff on the
"hygienic protocol" and social distancing.
n. All inmates are given surgical masks, which they must wear when
outside their cells.
o. "[T]o increase disinfectant capacity throughout the agency," the
sheriff's office purchased "three electric and one gas-powered
fogger[s]" "to sanitize units in the jail and patrol vehicles after each
shift."
p. "The [Bergen County Jail] signed a purchase order with Keefe
Commissary to provide free one-time commissary benefit to all
county inmates and ICE detainees. Each will get a 'food pack' and
'snack pack' free of charge."
A-3553-19T6
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Ahrendt also described the then-current status of COVID-19 cases within
the facility. He noted: (a) two ICE detainees had tested positive for COVID-19,
one was released on March 26, 2020, and the other was released from quarantine
on April 13, 2020; (b) three inmates were suspected of having the virus and were
currently on medical observation; (c) one inmate tested positive but was not
currently housed at the facility; and (d) "[e]leven Bergen County Corrections
Police Officers and two [n]urses who work at the [f]acility have tested positive"
and were "in quarantine and are not working at the [f]acility currently."
On appeal, the State contends the court abused its discretion by reopening
defendant's detention hearing and by ordering his release. Defendant argues his
asthma condition and the COVID-19 pandemic constitute a material change in
circumstances supporting the court's reopening of the detention hearing and the
court did not abuse its discretion by ordering his release with the conditions
imposed.
II.
The Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26,
"shall be liberally construed" to rely "primarily . . . upon pretrial release,"
without the use of monetary bail, to achieve three aims: to ensure that defendants
appear in court, to protect the safety of the community, and to guard against
A-3553-19T6
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"attempt[s] to obstruct the criminal justice process." N.J.S.A. 2A:162-15.
Where the State requests detention of a defendant entitled to the presumption of
release under N.J.S.A. 2A:162-18(b), "it must establish probable cause for the
offenses charged, unless the defendant has already been indicted[,]" State v.
Hyppolite, 236 N.J. 154, 164 (2018) (citation omitted), and, "to rebut the
presumption of release, [it] must 'prove[] by clear and convincing evidence that
no release conditions would reasonably assure the defendant's appearance in
court, the safety of the community, or the integrity of the criminal justice
process," ibid. (quoting State v. Ingram, 230 N.J. 190, 200-01 (2017) (second
alteration in original)).
We review a court's "pretrial detention decisions under the [CJRA]" under
an abuse of discretion standard. State v. S.N., 231 N.J. 497, 500 (2018). Thus
"the proper standard of appellate review is whether the trial court abused its
discretion by relying on an impermissible basis, by relying upon irrelevant or
inappropriate factors, by failing to consider all relevant factors, or by making a
clear error in judgment." Ibid.
Defendant moved for relief from the court's February 13, 2020 detention
order under N.J.S.A. 2A:162-19(f) and N.J.S.A. 2A:162-21(b). N.J.S.A.
2A:162-19(f) provides for the reopening of a detention hearing,
A-3553-19T6
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at any time before trial, if the court finds that
information exists that was not known to the prosecutor
or the eligible defendant at the time of the hearing and
that has a material bearing on the issue of whether there
are conditions of release that will 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.
[N.J.S.A. 2A:162-19(f).]
In contrast, N.J.S.A. 2A:162-21(b) provides for a "temporary release" from
detention of an eligible defendant "to the extent that the court determines the
release to be necessary for preparation of the eligible defendant's defense or for
another compelling reason."
In its decision, the court did not explain whether it granted defendant's
motion under either or both statutes. On appeal, however, defendant argues the
court properly granted his request to reopen his detention hearing and order his
release under N.J.S.A. 2A:162-19(f). He does not contend the court's release
order was proper under N.J.S.A. 2A:162-21(b), and with good reason. By its
plain terms, N.J.S.A. 2A:162-21(b) permits only a "temporary release" from
detention, and that is neither what defendant sought before the motion court n or
what the court granted. Defendant did not seek a temporary release from pretrial
detention; such a request would implicitly be for a limited period that would end
A-3553-19T6
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with a return to pretrial detention. Defendant sought release from detention
through the disposition of his charges at trial, and that is what the court ordered.
We find N.J.S.A. 2A:162-21(b) inapplicable to defendant's motion, and we do
not address it further. We limit our discussion to whether the court properly
reopened defendant's detention hearing and ordered his release under N.J.S.A.
2A:162-19(f).
N.J.S.A. 2A:162-19(f) "imposes a materiality standard to determine
whether to reopen a detention hearing when information 'that was not
known . . . at the time of the hearing' later surfaces." Hyppolite, 236 N.J. at 166.
"The court may reopen the hearing if the newly revealed [information] 'has a
material bearing' on whether the defendant poses a risk" of failing to appear for
future court appearances, a threat to the safety of any other person or the
community, or a risk that the defendant will obstruct the criminal justice process.
Ibid.
A court must "examine whether there is a reasonable possibility – not
probability – that the result of the [detention] hearing would have been different
had the" new information been disclosed at the time of the initial detention
hearing. Ibid. The materiality "standard focuses the parties and the court on
whether [the information] is important to the hearing's outcome from a
A-3553-19T6
19
reasonably objective vantage point." Id. at 170. The standard also places "[t]he
burden . . . on the State to demonstrate that a new hearing is not required." Ibid.
"Judges retain discretion to decide whether to reopen a detention hearing"
under N.J.S.A. 2A:162-19(f). Id. at 171. When a court decides a request to
reopen a detention hearing, "it should provide a statement of reasons" for the
decision to allow "review on appeal." Id. at 172.
Where, as here, a court decides to reopen the hearing, it "must again
decide whether the State has presented clear and convincing evidence to justify
detention." Ibid. That is, the court must determine if the State has presented
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); see also Hyppolite, 236 N.J.
at 172.]
The court may consider all the information bearing on the detention
decision, Hyppolite, 236 N.J. at 172; see also N.J.S.A. 2A:162-20, and must
"assess[] the full body of evidence" presented and "make the required statutory
findings," Hyppolite, 236 N.J. at 172. "To decide whether the State has satisfied
A-3553-19T6
20
its burden to justify pretrial detention, 'the court may take into account . . . [t]he
nature and circumstances of the offense,' '[t]he weight of the evidence,' the
defendant's 'history and characteristics,' the 'nature and seriousness' of the risk
of danger and obstruction the defendant presents, and Pretrial Services'
recommendation." Id. at 164 (quoting N.J.S.A. 2A:162-20).
Here, the court did not make any findings in the first instance supporting
its decision to reopen defendant's detention hearing. The court did not make any
factual findings supporting, and did not conclude as a matter of law, that
defendant's asthma, the COVID-19 pandemic, or the conditions in the jail had
"a material bearing on the issue of whether there are conditions of release that
will reasonably assure" defendant will appear for future court proceedings and
not pose a risk to the safety of others and the community. N.J.S.A. 2A:162-19.
Additionally, the judge's scant findings supporting his release decision are
limited to references to defendant's "low" PSA scores6 and defendant's lack of
any prior failures to appear. The court also made a finding that is without any
6
In fact, defendant's PSA score for new criminal activity was a three, which is
in the mid-range for that risk factor.
A-3553-19T6
21
support in the record–that defendant's asthma condition makes it more likely he
will contract COVID-19.7
In stark contrast to the detailed findings of the judge who ordered
defendant's detention, the judge who ordered defendant's release did not
consider, and did not make the requisite findings as to, the weight of the
evidence, defendant's prior history and characteristics, the nature and
seriousness of the risk of danger posed by defendant if released, and the other
information identified in N.J.S.A. 2A:162-20. See Hyppolite, 236 N.J. at 165.
The court also failed to consider whether the State could appropriately address
the COVID-19 risks within the jail. See, e.g., Williams, 452 N.J. Super. at 22
(explaining a jail's ability to provide appropriate medical care is factor to be
considered in making a detention determination for an eligible defendant with a
medical issue).
7
The record is bereft of any evidence that defendant's asthma condition
increases his susceptibility to getting the COVID-19 virus. Moreover, the record
is devoid of evidence from any medical professional that defendant's claimed
asthma condition will result in an adverse outcome if he contracts COVID-19.
We do not minimize the seriousness of COVID-19 for defendant or any other
person. We mention the dearth of evidence only to make clear that the court's
finding defendant is more likely to contract COVID-19 because he has asthma,
which is central to the court's release determination, finds no support in the
record. A judge's speculation about the effects of defendant's medical condition
does not support a proper release decision. See State v. Williams, 452 N.J.
Super. 16, 21-22 (App. Div. 2017).
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"It is vital" to proper appellate review "that the trial court make the
necessary findings and explain its reasons" when making detention decisions
under the CJRA. State v. C.W., 449 N.J. Super. 231, 255 (App. Div. 2017). The
court's failure to do so here renders it impossible to determine whether the court
properly exercised its discretion in reopening the detention hearing in the first
instance and ordering defendant's release in the second. The lack of findings
supporting the court's decisions requires that we vacate the court's order and
remand for the court to promptly reconsider defendant's motion to reopen his
detention hearing.
On remand, the court shall permit the parties to make supplemental
submissions to address the current status of defendant's medical condition, the
circumstances in the jail, and any other matters pertinent to defendant's motion;
and the court shall hear additional arguments from counsel. The court shall
determine and make findings as to whether defendant is entitled to reopen his
detention hearing under N.J.S.A. 2A:162-19(f). See Hyppolite, 236 N.J. at 169-
72. If the court determines the hearing should be reopened, the court shall
consider the record presented, including any additional submissions of the
parties on remand and all relevant information under N.J.S.A. 2A:162-20. The
court shall make findings supporting any release determination under N.J.S.A.
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2A:162-19(f).8 Defendant shall remain detained pending the remand court's
decision on defendant's motion to reopen his detention hearing.
We do not address defendant's claim he should be released pursuant to
Rule 3:21-10(b)(2), which allows for the amendment of "a custodial sentence to
permit the release of a defendant because of illness or infirmity of the
defendant." The argument was not raised before the motion court, see State v.
Robinson, 200 N.J. 1, 20 (2009), and the Rule is inapplicable because defendant
does not seek release from service of a custodial sentence.
Vacated and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
8
The record on remand shall include all prior submissions to the motion court,
Ahrendt's May 11, 2020 certification, and any additional submissions made by
the parties to the remand court.
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