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NOT FOR PUBLICATION WITHOUT THE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-0485-20T6
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ANDRE X. CHANCE,
Defendant-Respondent.
_________________________
Submitted December 16, 2020 – Decided December 29, 2020
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment Nos. 19-10-0774
and 19-10-0802.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for appellant (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for
respondent (Laura B. Lasota, Assistant Deputy Public
Defender, of counsel and on the brief).
PER CURIAM
The State appeals from an October 8, 2020 order granting defendant Andre
X. Chance's motion to reopen his detention hearing and releasing him from
pretrial detention on Level III monitoring plus home confinement and
enrollment in a drug treatment program. We reverse.
We glean the following facts from the record. On May 3, 2019, defendant
was arrested and charged with multiple drug offenses that stemmed from a
narcotics investigation that included several controlled buys and culminated
with the execution of a search warrant of a residence in Patterson. During the
execution of that warrant, defendant was observed throwing clear plastic bags
out of a window. The bags were recovered and contained 135 glassine envelopes
of heroin, 21 vials and 1 knotted bag of cocaine, 34 vials of MDMA, 1 8 grams
of crack cocaine, and 2 bags of marijuana.
The State moved for pretrial detention. The Public Safety Assessment
(PSA) recommended no release and scored defendant at a six for both risk of
failure to appear and risk of new criminal activity. The trial court denied pretrial
detention and released defendant on Level III monitoring plus home detention.
The release conditions required defendant to remain at home except while
1
MDMA is an acronym for 3,4-Methylenedioxymethamphetamine, a synthetic
amphetamine derivative commonly known as ecstasy or molly. In re Kollman,
210 N.J. 557, 563 (2012).
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attending attorney meetings, court appearances, and doctor's appointments, and
that defendant "not commit any offense during the period of release."
Defendant was charged in Indictment No. 19-10-0774 (the first
indictment) with: three counts of third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree distribution
of CDS, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree distribution of CDS
within 1000 feet of school property, N.J.S.A. 2C:35-7; three counts of third-
degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
-5(b)(3); four counts of third-degree possession of CDS with intent to distribute
within 1000 feet of school property, N.J.S.A. 2C:35-7(a); fourth-degree
possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1)
and -5(b)(12); and fourth-degree hindering, N.J.S.A. 2C:29-3(a)(3).
On September 17, 2019, defendant was arrested and charged with drug
offenses stemming from a routine motor vehicle stop. Police seized 169 glassine
envelopes of heroin and 35 vials of crack cocaine from defendant’s person and
vehicle. Defendant was charged in Indictment No. 19-10-0802 (the second
indictment) with: two counts of third-degree possession of CDS; two counts of
third-degree possession of CDS with intent to distribute; and two counts of third-
A-0485-20T6
3
degree possession of CDS with intent to distribute within 1000 feet of sch ool
property.
A violation of monitoring was filed against defendant because of his new
charges and his violation of home confinement. Pretrial Services recommended
that defendant's pretrial release be revoked.
On September 18, 2019, the State filed separate motions to revoke
defendant’s pretrial release on the first indictment pursuant to Rule 3:26-2(d)(1)
and to detain defendant on the second indictment. The PSA for the second
indictment scored defendant six for both risk of failure to appear and new
criminal activity.
The court granted the revocation motion. The judge found that defendant
had committed new offenses while on pretrial release and that no amount of
monetary bail, non-monetary conditions, or combination of both, would
reasonably assure defendant’s appearance in court when required and the
protection of the safety of any other person in the community.
The court also granted the motion for detention on the second indictment,
making the same findings as on the revocation motion. The court noted the
nature and circumstances of the offenses charged (six third-degree CDS
offenses), the weight of the evidence against defendant (the personal
A-0485-20T6
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observations of the officers and physical evidence seized), the history and
characteristics of defendant (including his criminal history as reflected in the
PSA), the nature and seriousness of the danger to the community that would be
posed by defendant’s release, the fact that defendant was on pretrial release and
probation at the time of the new arrest, the PSA scores, and the PSA’s
recommendation that defendant be detained.
Defendant appealed the detention order imposed on the second
indictment. We affirmed. State v. Chance, No. A-0399-19 (App. Div. Oct. 16,
2019).
On January 23, 2020, defendant applied and was evaluated for entry into
Drug Court. The substance abuse evaluation recommended defendant attend
intensive outpatient (IOP) treatment. Defendant was found clinically eligible
but not legally acceptable for Drug Court due to a prior adjudication. See "New
Jersey Statewide Drug Court Manual" at 8-10 (rev. Dec. 2020).
On September 4, 2020, defendant moved to reopen the revocation and
detention hearings, arguing in part that he should be released pretrial as his
rights to speedy trial and due process were violated due to his extended pretrial
detention caused by the coronavirus pandemic’s impact on the scheduling of
jury trials. Notably, defendant did not argue that he should be released because
A-0485-20T6
5
he needed substance abuse treatment and had been deemed clinically eligible for
Drug Court. Nor did he argue that the PSA scores were overstated.
On October 8, 2020, the court summarily rejected defendant's speedy trial
and due process arguments. Nevertheless, the court sua sponte considered and
found that new information, which was unknown to the parties at the time of the
original hearings, had a material bearing on the issue of detention that warranted
reopening the detention hearings; namely, that defendant needed substance
abuse treatment and was clinically eligible for Drug Court.
The court also examined the PSA scores for risk of failure to appear and
new criminal activity and concluded they were incorrect. The court reduced the
scores for risk of failure to appear from six to three and for new criminal activity
from six to five. Based on these adjustments, the court concluded the PSA
should have recommended release on Level III monitoring.
Factoring in defendant’s need for substance abuse treatment, clinical
eligibility for Drug Court, and reduced PSA scores, the court found that
conditions of pretrial release could be imposed to reasonably assure that
defendant would appear in court when required, that the safety of the public
would be preserved, and that he would not obstruct the criminal justice process.
The court ordered that defendant be released on Level III monitoring plus home
A-0485-20T6
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detention with an additional condition that he enroll in an IOP drug treatment
program within two weeks.
The State moved for leave to appeal and to stay defendant's release
pending appeal. We granted the motion and accelerated the appeal.
The State raises the following point for our consideration:
THE TRIAL COURT ABUSED ITS DISCRETION
AND IMPROPERLY REOPENED DEFENDANT'S
PRETRIAL DETENTION HEARING AND
ERRONEOUSLY ORDERED RELEASE.
The Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26,
"allows for pretrial detention of defendants who present such a serious risk of
danger, flight, or obstruction that no combination of release conditions wou ld
be adequate." State v. Robinson, 229 N.J. 44, 54 (2017) (citing N.J.S.A.
2A:162-18(a)(1)). Except "when a court finds probable cause that a defendant
committed murder or a crime that carries a sentence of life imprisonment [,]
N.J.S.A. 2A:162-19(b)[,] . . . the statute affords defendants a presumption of
release[,] N.J.S.A. 2A:162-18(b)." State v. Hyppolite, 236 N.J. 154, 163 (2018).
The State can move to detain certain defendants pretrial. Ibid. See
N.J.S.A. 2A:162-19(a) (listing offenses for which prosecutors may seek
detention). "[T]o rebut the presumption of release, the State must 'prove[] by
clear and convincing evidence that no release conditions would reasonably
A-0485-20T6
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assure the defendant's appearance in court, the safety of the community, or the
integrity of our criminal justice process.'" Id. at 164 (alteration in original)
(quoting State v. Ingram, 230 N.J. 190, 200-01 (2017)).
A defendant may apply to reopen a detention hearing under N.J.S.A.
2A:162-19(f), which provides:
The hearing may be reopened . . . 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).]
Section 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 (alteration in original)
(citing N.J.S.A. 2A:162-19(f)). "The court may reopen the hearing if the newly
revealed [information] 'has a material bearing' on whether the defendant poses
a risk of flight, danger, or obstruction." Ibid. (quoting N.J.S.A. 2A:162-19(f)).
"Judges should examine whether there is a reasonable possibility — not
probability — that the result of the [detention] hearing would have been
A-0485-20T6
8
different had the" new information been disclosed at the time of the initial
detention hearing. Id. at 169. "That standard focuses the parties and the court
on whether [the information] is important to the hearing's outcome from a
reasonably objective vantage point." Id. at 169-70. Accordingly, "[a] fanciful
possibility that the outcome would be different would not satisfy the standard."
Id. at 170. The State has the burden to demonstrate that a new hearing is not
required. Ibid.
We review a decision whether to reopen a detention hearing under
N.J.S.A. 2A:162-19(f) for abuse of discretion. Id. at 171. We likewise review
the granting or denial of pretrial release and the conditions of release for abuse
of discretion. State v. S.N., 231 N.J. 497, 515 (2018). "A trial court abuses its
discretion when it rests its decision on an impermissible basis or fails to consider
relevant factors." State v. Paul, ___ N.J. Super. ___, ___ (App. Div. 2020) (slip
op. at 6) (citing S.N., 231 N.J. at 515). "We need not defer to 'a decision based
upon a misconception of the law.'" Ibid. (quoting S.N., 231 N.J. at 515).
Applying these principles, we conclude that the trial court misplaced its
discretion by reopening the detention hearing and granting release. Defendant's
release on the first indictment was revoked because he violated the conditions
by committing new offenses. He also violated the home confinement condition.
A-0485-20T6
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Defendant was also detained on the charges reflected in the second indictment.
We affirmed his detention on the new charges. State v. Chance, No. A-399-19
(App. Div. Oct. 16, 2019).
The trial court's analysis of defendant's motion to reopen the detention
hearing went well beyond the grounds argued by defendant. The court sua
sponte considered defendant's clinical eligibility for Drug Court and the
recommendation that he participate in an IOP drug treatment program. The
court also examined the accuracy of the PSA scores for risk of failure to appear
and new criminal activity and determined the scores should be lowered.
The record does not support the trial court's reduction of the PSA score
for new criminal activity. Defendant committed new offenses while on pretrial
release. Indeed, defendant was indicted for six new offenses less than seven
months after the May 4, 2019 PSA was issued.
Nor does the record support the trial court's conclusion that releasing
defendant on largely the same conditions as before—Level III plus home
confinement—with an additional condition that he enroll in an IOP drug
treatment program, will reasonably assure the protection of the safety of the
community. Notably, the home confinement does not include electronic
monitoring.
A-0485-20T6
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The State established probable cause that defendant distributed heroin in
a school zone, and while on pretrial release, possessed heroin and cocaine with
intent to distribute within a school zone. These offenses bespeak the danger he
poses to the community. 2
The previous monitoring level failed to prevent new criminal activity. The
record does not support the motion court's finding that reinstituting the same
conditions plus enrollment in an IOP treatment program will reasonably assure
the safety of the community, particularly since defendant will not be subject to
the intensive supervision imposed on Drug Court participants, which includes
monitoring compliance with treatment, frequent scheduled and random drug
tests, and regular curfew checks.
More fundamentally, we conclude that neither the grounds raised by
defendant to reopen the detention hearing, nor the additional facts considered by
the trial court sua sponte, satisfied the requirements of N.J.S.A. 2A:162-19(f).
Reversed.
2
The danger posed by school zone offenses is reflected by the "real function"
of N.J.S.A. 2C:35-7, which "require[s] a minimum term as part of the sentence
of certain offenders who would normally be prosecuted under N.J.S.A. 2C:35 -
5." Cannel, N.J. Criminal Code Annotated, cmt. 3 on N.J.S.A. 2C:35-7 (2020).
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