RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4778-16T6
A-5364-16T6
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. December 5, 2017
DONOVAN WHITE, APPELLATE DIVISION
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LARRY BOSTIC,
Defendant-Appellant.
_______________________________________
Argued October 30, 2017 – Decided December 5, 2017
Before Judges Messano, O'Connor, and
Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
17-05-1216 in A-4778-16.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Complaint
No. W-2017-1470-0614 in A-5364-16.
Laura B. Lasota, Assistant Deputy Public
Defender, argued the cause for appellant
Donovan White in A-4778-16 (Joseph E.
Krakora, Public Defender, attorney; Ms.
Lasotas and Christiane Cannon, Assistant
Deputy Public Defender, of counsel and on
the briefs).
Nathan R. Perry, Assistant Deputy Public
Defender, argued the cause for appellant
Larry Bostic in A-5364-16 (Joseph E.
Krakora, Public Defender, attorney; Mr.
Perry, of counsel and on the brief).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent in A-4778-16
(Robert D. Laurino, Acting Essex County
Prosecutor, attorney; Mr. Ducoat, of counsel
and on the briefs).
Andre R. Araujo, Assistant Prosecutor,
argued the cause for respondent in A-5364-16
(Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney; Mr. Araujo, of counsel
and on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
In these appeals, now consolidated in a single opinion, we
consider for the first time the procedural and substantive
provisions of the Criminal Justice Reform Act, N.J.S.A. 2A:162-
15 to -26 (the CJRA), that are applicable when a previously
released defendant allegedly violates one or more conditions of
release imposed by the court. We provide some background.
As to A-4778-16
Defendant Donovan White was arrested on January 28, 2017,
and charged with second-degree robbery and other offenses.
2 A-4778-16T6
Defendant's score on the public safety assessment (PSA) for both
failure to appear (FTA) and new criminal activity (NCA) was
five, the second-highest possible score in each category, and
Pretrial Services recommended against his release. The State,
however, did not move to detain defendant. The judge ordered
defendant's release with the conditions that he: refrain from
committing any new offense; avoid contact with the victim;
report to Pretrial Services every week, alternately in person
and by phone; remain on home supervision with an electronic
monitoring device (EMD); avoid the location where the robbery
occurred; appear for all scheduled court proceedings; and
immediately notify Pretrial Services of any change of address,
telephone number, or other contact information. The grand jury
indicted defendant on May 9, 2017.
On May 25, Pretrial Services filed a violation report,
indicating that defendant had permitted his EMD to "die" on
several occasions and to remain dead for several days by failing
to keep it charged. Apparently, the State moved to revoke
defendant's release or modify the conditions of release. R.
3:26-2(c).1
On the return date of June 5, 2017, the prosecutor said
that in light of his conversation with defense counsel, the
1
The motion is not in the appellate record.
3 A-4778-16T6
State would not seek detention or modification. The prosecutor
noted that the EMD had "shorted out," and that defendant had
been "forced out" of his mother's home after an argument, which
had "led to the bracelet not being charged." Defense counsel
argued against any change in conditions under these
circumstances, and the judge agreed. The prosecutor indicated,
nevertheless, that any further problems would lead to the
State's filing another motion to revoke defendant's release.
Pretrial Services filed a second violation report on June
21, 2017. It alleged that: defendant's EMD was "dead" on three
separate dates after the June 5 hearing; defendant failed to
report "for instruction" on the proper use of the device after
the hearing and after acknowledging receipt of a message to
report; numerous "satellites" detected defendant's presence at
various hours at three different locations in Hoboken and
Newark; and defendant failed to update his home address.
Pretrial Services recommended revocation of defendant's release,
and the State moved for that relief.
On Friday, July 7, the prosecutor and defense counsel
appeared before the judge; defendant was not present. There was
some confusion regarding the date set for the revocation
hearing, with defense counsel and the prosecutor both indicating
that the hearing was set for Monday, July 10. Defense counsel
4 A-4778-16T6
indicated that she had been in touch with defendant, and he
intended to be present on Monday and to produce a witness and
evidence. Both attorneys agreed to delay the hearing.
However, unbeknownst to counsel or the court, defendant
reported to Pretrial Services later in the day on July 7, and
was told to report to court. He did so. Before the judge,
defense counsel explained that instead of reporting to Pretrial
Services telephonically as required, defendant had appeared in
person because of continued problems with his EMD. Over
defendant's objection, the judge immediately considered the
State's motion to revoke defendant's release.
Defense counsel sought an adjournment, arguing that
defendant was not prepared to respond because he had received
notice that the motion would be heard on July 10. Defendant
intended to call his mother as a witness to confirm that he was
residing with her and to address "some of the concerns . . .
about the [EMD] being defective," but she was not available to
testify until Monday. Defendant also wanted to present evidence
from his employer to show that he had been working consistently
and that his presence at the three locations cited in the
violation report had been work-related. Counsel stressed that
in the nearly six months since defendant had been released on
conditions, he had not been arrested for a new offense, had not
5 A-4778-16T6
been in contact with the victim, had not been in the area of the
offense and had not failed to appear for a court date.
The judge agreed that defendant's conduct did not offend
"two of the primary goals of pretrial release," which were to
guard against the commission of a new offense and the failure to
appear in court. However, the judge stated, "the conditions of
release are not limited to that. There are certain prophylactic
conditions placed upon the accused to provide . . . reasonable
assurances that . . . there will be an appearance as required,
there will be no new offenses, and there will be no obstruction
of justice."
The judge noted that Pretrial Services had initially
recommended detention based on defendant's PSA score, and that
the recommendation established a "prima facie case which would
satisfy the finding by clear and convincing evidence that there
is [sic] no conditions or combinations of conditions that will
reasonably assure the defendant's appearance, the protection of
the safety of the community."
The judge took note of defendant's prior record; his
subsequent indictment, which established probable cause that
defendant committed the crimes charged; and the strength of the
State's evidence. The judge found that after the June 5
hearing, defendant continued to allow the EMD to die, thus
6 A-4778-16T6
inhibiting Pretrial Services from monitoring his location;
failed to report to Pretrial Services on June 14; and was
present at the three locations noted in the violation. The
judge stated:
[E]ssential to the proper functioning of the
criminal justice reform is the ability to
monitor compliance with release conditions.
Despite having the opportunity earlier in
response to the first notice of violation,
[sic] the information before the Court amply
demonstrates by a preponderance that there
has been a violation of the home detention
provision. And this Court is no longer
comfortable with the continued release of
[defendant].
And I find by clear and convincing
evidence through operation of the prima
facie case provision based upon the
information set forth in the PSA that there
are no conditions or combinations of
conditions that will reasonably assure the
defendant's appearance, the protection of
the safety of the community.
The judge entered the July 7, 2017 pretrial detention order from
which defendant now appeals.
As to A-5364-16
On June 22, 2017, defendant Larry Bostic was charged with
five counts of endangering the welfare of children and five
counts of invasion of privacy. The State alleged that defendant
surreptitiously video recorded female juvenile employees
disrobing and changing into work uniforms at defendant's
business. Although defendant's PSA scores were two (FTA) and
7 A-4778-16T6
one (NCA), and Pretrial Services had recommended his release on
his own recognizance, the judge ordered defendant detained.
Defendant appealed, and, on July 24, 2017, a panel of our
colleagues vacated the detention order and remanded the matter,
concluding that the judge had failed to provide written factual
findings in support of the order. The remand hearing took place
on August 2.2
With little discussion, the judge ordered defendant's
release on "Level 3, monitoring, home detention and a bracelet."
He advised defendant that except to go to the doctor, shop for
food or come to court, he could not leave his home. The judge
ordered defendant to appear at Pretrial Services the next day
upon his release from jail.3 He also: ordered defendant to have
no contact with the victims; requested the prosecutor to supply
the victims' addresses; told defendant that his "bracelet" would
"set off an alert" if he entered the 1000-feet "zone of
exclusion" around the victims; and ordered defendant to have no
contact with anyone under the age of eighteen.
2
Although the transcript of the remand hearing indicates it took
place before a different judge, this is an apparent error. The
order following remand bears the signature of the same judge who
issued the detention order, and he referenced our remand order
during the course of the hearing.
3
Even though the charges emanated from Cumberland County,
defendant was apparently incarcerated in the Camden County jail.
8 A-4778-16T6
The order of release ostensibly detailed these and other
conditions imposed on defendant. However, the order erroneously
provided: "Defendant shall come within 1000 feet of any victim
inclusion zones." Moreover, the addresses of the victims were
not in the order, and the record fails to reveal that those
locations were ever provided to defendant prior to his release.
As instructed, defendant appeared at Pretrial Services on
August 3, 2017. He was immediately taken into custody based
upon a violation report, which indicated that the assistant
criminal division manager had contacted local police when
defendant's EMD demonstrated that he had "failed to remain in
his home," was "roaming the city of Vineland most of the day,"
and had entered a victim exclusion zone for one minute. In the
violation report, Pretrial Services wrote that defendant was
currently on the highest level of
supervision. According to the structure
response grid, entering a victim exclusion
zone is a major violation as [is] leaving
your approved home address. There are no
conditions that can be placed on the
defendant that will ensure his compliance.
The record before us indicates no arrest warrant was issued, and
defendant never appeared before a judge until August 9, which
was the return date for the State's motion to revoke defendant's
release.
9 A-4778-16T6
A different judge presided over the revocation hearing.
The prosecutor proffered the violation report from Pretrial
Services and a Google map, which she claimed demonstrated that
defendant "was essentially moving all around the city of
Vineland in violation of his conditions." Defense counsel
initially tried to explain that defendant did not know "the
location of the victim exclusion zone." She claimed that
defendant had gone to the police department a few blocks from
his home to retrieve his wallet and keys.
Defendant insisted on speaking, so the judge placed him
under oath. Defendant said that he had tried unsuccessfully to
retrieve his wallet and keys from the local police department, a
few blocks from his home. He relied upon an elderly friend to
drive him from his home in Vineland to Pretrial Services in
Bridgeton. Defendant said that he had no control over the route
his friend had taken, and he had no knowledge where any of the
five alleged victims lived.
The prosecutor's retort was that as the "proprietor of the
business . . . it's assumed that [defendant was] probably going
to know where these kids are living." The record fails to
demonstrate that the prosecutor had complied with the court's
earlier request to supply those addresses, or that the pretrial
release order actually served on defendant included the victims'
10 A-4778-16T6
addresses or described the parameters of the victim exclusion
zones.
Referencing the violation report, the judge found that
defendant had been in the exclusion zone where two victims lived
in the same apartment complex, and that defendant had "failed to
remain in [his] home as required." He concluded that defendant
was
obviously . . . not in compliance and . . .
there's no manner in which we can keep [him]
in compliance.
At this point the State has overcome
its burden in establishing that there's no
amount of monetary bail, non-monetary
conditions or combinations thereof which
would ensure that . . . you[ would] appear
in court[,] . . . not present a danger to
the community[] and . . . not obstruct
justice.
The detention order indicated that the judge made these findings
by clear and convincing evidence. The order also cited the
"nature and circumstances of the offense," including defendant's
violation of conditions of pretrial release; the weight of the
evidence, specifically the violation report and Google map; the
risk defendant posed to witnesses and the community; and
Pretrial Services' recommendation of detention.
Defendant filed this appeal.
11 A-4778-16T6
I.
The CJRA "'shall be liberally construed' to effect its
purpose: to rely primarily on 'pretrial release by non-monetary
means to reasonably assure' that a defendant will 'appear[] in
court when required,' will not endanger 'the safety of any other
person or the community,' and 'will not obstruct or attempt to
obstruct the criminal justice process.'" State v. Robinson, 229
N.J. 44, 55 (2017) (quoting N.J.S.A. 2A:162-15). With certain
exceptions, or unless the prosecutor moves for pretrial
detention, the CJRA requires the court to release a defendant on
his personal recognizance or unsecured appearance bond following
arrest. N.J.S.A. 2A:162-17(a). Only if those conditions are
inadequate "to assure a defendant's return to court and protect
both public safety and the integrity of the criminal justice
process," may the judge impose "non-monetary conditions that are
the least restrictive conditions necessary." Robinson, supra,
229 N.J. at 55 (citations omitted).
Compliance "with all conditions of release" is another
stated purpose of the Act. N.J.S.A. 2A:162-15. These
conditions may include requiring a defendant to refrain from
committing another crime, from contacting the alleged victim of
the crime, from contacting witnesses named in the release order
or subsequent court order, and other non-monetary conditions.
12 A-4778-16T6
N.J.S.A. 2A:162-17(b)(1)(a) to (c) and (b)(2); R. 3:26-2(b)(2)
and (3).
When a defendant is released on conditions,
the court shall, in the document authorizing
the eligible defendant's release, notify the
eligible defendant of:
(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.
[N.J.S.A. 2A:162-23(a)(1)(emphasis added).]
If the court orders a defendant's release subject to conditions,
it may subsequently review the conditions on its own motion, or
on motion by either party, and may modify the conditions or
impose new conditions upon a showing of a material change in
circumstances. R. 3:26-2(c)(2).
The State may seek revocation of a defendant's release if
he or she violates a restraining order or a condition of
release, "or upon [the court's] finding of probable cause . . .
that the . . . defendant has committed a new crime while on
release." N.J.S.A. 2A:162-24; accord R. 3:26-2(d)(1). Pending
disposition of a motion to revoke release, a defendant shall
remain released and "the court shall issue a notice to appear to
13 A-4778-16T6
compel the appearance of the eligible defendant at the detention
hearing." N.J.S.A. 2A:162-19(d)(2).
At the revocation hearing, the defendant shall be
represented by counsel, provided with all discovery, afforded
the right to testify and present witnesses, cross-examine
witnesses who appear and "present information by proffer or
otherwise." R. 3:26-2(d)(2). The CJRA does not set forth the
State's burden of proof at the revocation hearing, but Rule
3:26-2(d)(1) provides that the State need only prove the
violation of a condition of release by a preponderance of the
evidence. However,
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, [the court] 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
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.
14 A-4778-16T6
[N.J.S.A. 2A:162-24 (emphasis added); see
also R. 3:26-2(d)(1).]
Thus, N.J.S.A. 2A:162-24 conditions revocation of release and
pretrial detention on a finding by clear and convincing evidence
that no conditions of release will reasonably assure the three
goals of the Act. In other words, even after the State proves a
violation, the court must still consider whether under all
relevant circumstance, the clear and convincing evidence
proffered by the State requires detention. The CJRA does not
allow for detention based solely on a finding that the defendant
violated the terms of release.
Although the CJRA and Rule 3:26-2 are silent regarding the
procedure to be followed at a revocation hearing, we conclude
that the State's proffer of the Pretrial Services violation
report alone may be sufficient to establish, by a preponderance
of the evidence, that a violation occurred. We reach this
conclusion for several reasons.
In State v. Ingram, 230 N.J. 190, 213 (2017), the Court
held that at the initial detention hearing under the CJRA, the
State may establish probable cause by proffer without producing
a live witness. The probable cause standard, which applies to
initial detention hearings and revocation hearings based upon
the commission of a new offense, and the preponderance standard,
which is applicable to revocations based on violations of
15 A-4778-16T6
conditions, are similar in nature and precede the ultimate
finding of whether clear and convincing evidence supports
detention. Compare State v. Gibson, 218 N.J. 277, 292 (2014)
(explaining that probable cause is a well-grounded suspicion
that a crime has been committed), with State v. Williams, 93
N.J. 39, 78 (1983) (providing: "Preponderance of evidence . . .
is evidence sufficient to generate a belief that the conclusion
advanced is likely. It has been stated in terms of reasonable
probability.") (citations omitted).
Further, the CJRA makes no distinction between a motion to
detain filed immediately following arrest or at a subsequent
time. See N.J.S.A. 2A:162-19(a) (explaining that a motion to
detain may be filed at any time before or after release).
Indeed, a motion for revocation pursuant to N.J.S.A. 2A:162-24
is simply a motion to detain with the added requirement that (1)
the State prove probable cause that the defendant committed a
new crime, or prove by a preponderance of the evidence that the
defendant violated a release term or restraining order; and (2)
the nature and severity of the new crime or the violation, in
addition to all other circumstances, clearly and convincingly
establishes that detention is appropriate.
16 A-4778-16T6
Under the federal release revocation statute, which is
somewhat different from N.J.S.A. 2A:162-24, the court may revoke
release upon motion by the government if the judge
(1) finds that there is —
(A) probable cause to believe
that the person has committed a
Federal, State, or local crime while on
release; or
(B) clear and convincing evidence
that the person has violated any other
condition of release; and
(2) finds that—
(A) based on the factors set
forth in [18 U.S.C.A. § 3142(g)], there
is no condition or combination of
conditions of release that will assure
that the person will not flee or pose a
danger to the safety of any other
person or the community; or
(B) the person is unlikely to
abide by any condition or combination
of conditions of release.[4]
[18 U.S.C.A. § 3148(b).]
Federal courts take a similar approach and allow the government
to prove a release-term violation by proffer. United States v.
LaFontaine, 210 F.3d 125, 131 (2nd Cir. 2000); United States v.
Aron, 904 F.2d 221, 227 (5th Cir. 1990); United State v. Davis,
4
Unlike the federal statute, the CJRA does not authorize
pretrial detention based upon a finding that the defendant is
unlikely to abide by any conditions of release.
17 A-4778-16T6
845 F.2d 412, 415 (2nd Cir. 1988). C.f. Ingram, supra, 230 N.J.
at 205 (explaining that because the CJRA is similar to its
federal counterpart, New Jersey courts should "give careful
consideration to the federal case law that interprets the Bail
Reform Act," 18 U.S.C.A. §§ 3141 to 3156).
Lastly, we reject the argument, explicitly made by White
and implicitly made by Bostic, that the State must prove a
defendant's violation of a condition of release was purposeful
or intentional. Nothing in the CJRA or our Court Rules supports
that claim. However, evidence that the violation is the result
of inadvertence, negligence or is otherwise excusable is clearly
a "relevant circumstance[]" in weighing "the nature and
seriousness of the violation," and ultimately whether the
evidence clearly and convincingly demonstrates detention is
warranted in light of all other relevant circumstances.
N.J.S.A. 2A:162-24.5
5
In a somewhat analogous circumstance, our Criminal Code
explicitly provides that the State must either (1) establish
probable cause that the defendant committed a new crime while on
probation, or (2) "inexcusably failed to comply with a
substantial requirement imposed as a condition" of probation at
a violation of probation (VOP) hearing. N.J.S.A. 2C:45-3(a)(4)
(emphasis added). If the alleged violation is a failure to pay
a fine or make restitution, the court must find a willful
violation. N.J.S.A. 2C:45-3(a)(4). We note further that VOP
hearings must be on written notice to the defendant, who has the
right "to hear and controvert the evidence against him, to offer
evidence in his defense, and to be represented by counsel."
(continued)
18 A-4778-16T6
We now apply these basic principles to the facts presented
in these two appeals.
II.
As to defendant White, we first address the judge's
reliance in part upon the "no release" recommendation made by
Pretrial Services in the PSA generated when defendant was
arrested in January. As noted, the State never sought detention
at that time, but, in reaching his revocation decision, the
judge considered Pretrial Services' recommendation as prima
facie evidence sufficient to overcome the presumption of
release. R. 3:4A(b)(5).
Before us, defendant argues that the prima facie evidence
provision only applies to the initial detention decision, and
the State contends that the provision is inapplicable to a
release revocation hearing because the presumption of release
only applies at the initial detention hearing. We disagree with
both parties and conclude that, in the circumstances of this
case, where the court never made an initial detention decision,
(continued)
N.J.S.A. 2C:45-4. And, the State may rely on a proffer of
evidence or hearsay to meet its burden. State v. Reyes, 207
N.J. Super. 126, 138 (App. Div.), certif. denied, 103 N.J. 499
(1986). We note, however, that the Court recently heard
argument as to whether the trial court erred in accepting
hearsay testimony that the defendant committed a new offense at
the defendant's violation of probation hearing. State v. Noah
Mosley, Docket No. A-24-16 (argued November 28, 2017).
19 A-4778-16T6
the judge properly considered Pretrial Services' recommendation
as prima facie proof overcoming the presumption of release.
Initially, Rule 3:4A(b)(5) codifies the CJRA's presumption
of a defendant's release, except for those crimes to which a
presumption of detention applies. See N.J.S.A. 2A:162-18(b)
(presumption of release); N.J.S.A. 2A:162-19(b)(1) and (2)
(rebuttable presumption of detention for certain crimes). The
Rule also permits, but does not require, the judge to consider
the Pretrial services recommendation against release as prima
facie evidence sufficient to overcome the presumption. R.
3:4A(b)(5); see also See State v. C.W., 449 N.J. Super. 231, 262
(App. Div. 2017) (noting consideration of the recommendation as
prima facie evidence to rebut the presumption of release is
discretionary). N.J.S.A. 2A:162-19(a) provides that a motion to
detain may be filed at any time prior to trial, and the Rule
does not limit its application to motions filed prior to the
initial hearing.
We find further reason to reject the State's position in
Article 1, paragraph 11, of our Constitution, the amendment that
preceded enactment of the CJRA, which provides: "All persons
shall, before conviction, be eligible for pretrial release."
Furthermore, N.J.S.A. 2A:162-15 requires that the CJRA "shall be
liberally construed to effectuate the purpose of primarily
20 A-4778-16T6
relying upon pretrial release by non-monetary means to
reasonably assure" its goals.
We specifically do not address a situation where the court
initially rejects the PSA recommendation of "no release" and
releases the defendant on conditions.6 In such situations, the
CJRA requires the court entering an order "contrary to a
recommendation made" in the PSA to explain in writing its
decision to release. N.J.S.A. 2A:162-23(a)(2). We recognize
that the court's subsequent invocation of Rule 3:4A(b)(5) to
surmount the presumption of release raises the very real
possibility of inconsistent decision-making following re-
litigation of the same or similar issues. See State v. K.P.S.,
221 N.J. 266, 276 (2015) ("The law-of-the-case doctrine 'is a
non-binding rule intended to prevent relitigation of a
previously resolved issue' in the same case.") (citing Lombardi
v. Masso, 207 N.J. 517, 538 (2011)). Here, however, the State
never sought defendant's detention so the judge never considered
6
We tread carefully because of the Court's pending decision in
State v. S.N., Docket No. A-60-16 (argued on September 11,
2017), where the use of Pretrial Services' recommendation of no
release as prima facie evidence under Rule 3:4A(b)(5) was raised
during argument before the Court, and State v. Hassan Travis,
Docket No. A-7-17 (argued on November 29, 2017), where Pretrial
Services' recommendation in the context of the Rule was squarely
considered.
21 A-4778-16T6
the PSA's recommendation of "no release" prior to the revocation
hearing.
Defendant White argues that the judge "misapplied the law
on revocation of pretrial release," essentially contending that
any violations proven during the revocation hearing were
insufficient to establish by clear and convincing evidence that
detention was required. He underscores that the violations did
not include another arrest for a crime, contact with the victim,
or appearance at the location of the crime. Further, he
appeared at every court proceeding and reported to Pretrial
Services as required. In short, he claims that there was no
basis to find he posed a risk to the community or the
administration of justice, or that he would fail to appear in
court when required. We choose not to address those arguments
because reversal is required for other reasons that follow, and
defendant may renew those and other arguments on the record
produced at the remand hearing we now order.
As noted, the CJRA requires that a defendant receive proper
notice of the revocation hearing. N.J.S.A. 2A:162-19(d)(2).
Here, on July 7, both the prosecutor and defense counsel
believed the revocation hearing on the State's motion was to
take place on Monday, July 10. The judge said the "notice of
violation and order" of the court set July 7 as the date.
22 A-4778-16T6
However, the notice of violation in the record, filed in support
of the State's motion, does not set the date; the referenced
court order is also not in the record. Moreover, the State's
notice of motion, which is in the record, was not served on
defense counsel until July 6, making it unlikely that the
hearing was set for the next day.
In short, the record does not reasonably support the
conclusion that defendant was on notice that the hearing was to
take place on July 7. This is amply borne out by defense
counsel's later assertion that defendant mistakenly reported to
Pretrial Services on July 7 and only appeared in court because
he was told on that day by Pretrial Services to report to court.
The failure to provide proper notice was particularly
prejudicial in this case because the judge denied defendant's
reasonable request to delay the hearing until the following
Monday. The judge did not provide an explanation for denying
the adjournment request, although we may surmise that he was
concerned about defendant's alleged prior violations and the
second violations report, filed less than one month after the
earlier June 5 court hearing.
However, Rule 3:26-2(d)(2) clearly provides that a
defendant has the right to call witnesses and present evidence
at a release revocation hearing. Here, defendant made clear
23 A-4778-16T6
that he intended to call his mother, who was unavailable on July
7 but would be available on July 10, to explain the problems he
continued to have with his EMD and to testify that defendant had
returned to her home. He also wished to produce evidence that
his work required him to be at certain locations outside of his
home, including those detected by satellite. This evidence, if
believed by the judge, certainly rebutted the State's evidence
regarding "the nature and seriousness of the violation."
N.J.S.A. 2A:162-24.
We do not suggest that a judge should surrender his or her
broad discretion to control the revocation hearing and limit the
testimony and evidence that is relevant. However, federal
courts have recognized that the government's sole reliance on a
proffer at the revocation hearing may affect the probative value
and weight of the evidence on the ultimate decision of whether
detention is appropriate. See LaFontaine, supra, 210 F.3d at
132 (noting that while the government may proceed by proffer, it
usually does not rely solely on a proffer where its request to
revoke release is premised upon danger to the community); Aron,
supra, 904 F.2d at 227 ("The inability of the defendant to
cross-examine a declarant is relevant to the probative value of
the proffered evidence . . . ."). It follows that a defendant's
ability pursuant to Rule 3:26(d)(2) to call witnesses and
24 A-4778-16T6
produce evidence to rebut the State's revocation proofs has
increased significance when the only proof of a violation is the
report of Pretrial Services, as it was in this case.
The denial of the adjournment under these circumstances was
a mistaken exercise of the judge's discretion.7 See C.W., supra,
449 N.J. Super. at 255 ("An appellate court can also discern an
abuse of discretion when the trial court fails to take into
consideration all relevant factors and when its decision
reflects a clear error in judgment.") (citing State v. Baynes,
148 N.J. 434, 444 (1997)). We therefore reverse and vacate the
detention order, and remand the matter to the trial court to
conduct a new hearing on the State's motion to revoke White's
release.
Although the CJRA requires a previously released defendant
to remain so pending the detention hearing, N.J.S.A. 2A:162-
19(d)(2), we do not order defendant's immediate release in this
case. If the State wishes to proceed on its motion to revoke
7
We reject the State's suggestion, made at oral argument, that
defendant's challenge to the denial of his adjournment request
was not properly before us because it was contained in a
footnote in his brief. See Sullivan v. Port Auth. of N.Y. and
N.J., 449 N.J. Super. 276, 281 (App. Div. 2017) (explaining that
arguments raised in a footnote will not be considered on
appeal). In arguing that the evidence did not clearly and
convincingly establish that detention was appropriate, defendant
repeatedly referenced throughout his brief the contrary evidence
that may have been produced, but was not, because the
adjournment request was denied.
25 A-4778-16T6
defendant's release, it shall notify the judge and defense
counsel forthwith, and the judge shall provide notice and
conduct the revocation hearing within ten days of our judgment,
or otherwise release defendant subject to appropriate
conditions. We do not retain jurisdiction.
III.
As to defendant Bostic, we initially express grave concerns
about the procedures employed prior to the actual revocation
hearing. Defendant was arrested when he reported to Pretrial
Services for the first time as ordered. He had not committed
another crime and there was no outstanding arrest warrant, see
N.J.S.A. 2A:162-23(a)(1)(b) (permitting the "immediate issuance
of a warrant for the . . . defendant's arrest" for "violating a
condition of release"), yet defendant was taken into custody
immediately and not brought before a judge for five days. At
oral argument before us, the prosecutor could not identify what
authority permitted the State to proceed in such fashion, and we
can find none ourselves.
The CJRA requires that a defendant must be provided with
"all conditions . . . to which the release is subject" "in a
manner sufficiently clear and specific to serve as a guide for
. . . defendant's conduct." N.J.S.A. 2A:162-23(a)(1)(a). There
is no evidence that the prosecutor actually supplied the
26 A-4778-16T6
addresses of the victims, as the judge asked her to do, and the
actual order, which mistakenly stated, "Defendant shall come
within 1000 feet of any victim inclusion zones[,]" does not
provide them. In short, nothing in the record demonstrates that
Pretrial Services or the State ever supplied defendant with the
parameters of the victim exclusion zones.
At the revocation hearing, defendant denied any knowledge
of the victims' addresses. The State only argued that defendant
must have known the victims' home addresses because they worked
in his business. Although the judge specifically found that
defendant had entered the exclusion zone for two of the victims,
the judge did not find that defendant had actually known where
or how extensive those zones were. Under these circumstances,
the State failed to prove by a preponderance of the evidence
that defendant had violated that condition of his release.
The judge also found that defendant had violated another
condition of his release by "fail[ing] to remain in [his] home
as required." In fact, the first judge, on remand, had
specifically ordered defendant to report to Pretrial Services,
which was located in a town different from defendant's
residence, upon his release from jail or the next day if he were
released late in the day. Defendant complied by reporting the
27 A-4778-16T6
day after the remand hearing and, in doing so, had to leave his
home.
The State's proof at the revocation hearing was limited to
the Pretrial Services' violation report and the Google Map. The
Google map, which is in the record, does not demonstrate that
defendant was wandering or "roaming the city of Vineland most of
the day," contrary to the assertion in the violation report.
Therefore, the State failed to prove by a preponderance of the
evidence this second purported violation of a condition of
release.
On Bostic's appeal, we reverse, vacate the detention order
and order his immediate release on appropriate conditions
following a hearing, which the Law Division judge shall conduct
forthwith.
Reversed and remanded in both appeals.
28 A-4778-16T6
STATE OF NEW JERSEY VS. DONOVAN WHITE STATE OF NEW JERSEY VS. LARRY BOSTIC (17-05-1216, ESSEX COUNTY AND STATEWIDE AND W-2017-1470-0614, CUMBERLAND COUNTY AND STATEWIDE)(CONSOLIDATED)(RECORD IMPOUNDED)
Combined Opinion