State v. McCray

• Decision Date: 29 March 2019
• Docket Number: A-0358-18T6,DOCKET NOS. A-3745-17T6
• Citation: 205 A.3d 1178,458 N.J.Super. 473
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Antoine MCCRAY, Defendant-Respondent. State of New Jersey, Plaintiff-Appellant, v. Sahaile Gabourel, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

458 N.J.Super. 473

205 A.3d 1178

STATE of New Jersey, Plaintiff-Appellant,

v.Antoine MCCRAY, Defendant-Respondent.

State of New Jersey, Plaintiff-Appellant,

v.Sahaile Gabourel, Defendant-Respondent.

DOCKET NOS. A-3745-17T6

A-0358-18T6

Superior Court of New Jersey, Appellate Division.

Argued February 26, 2019

Decided March 29, 2019

Claudia Joy Demitro, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Claudia Joy Demitro, Trenton, of counsel and on the briefs).

Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for respondents (Joseph E. Krakora, Public Defender, attorney; Laura B. Lasota, of counsel and on the briefs).

Before Judges Yannotti, Rothstadt and Gilson.

The opinion of the court was delivered by

YANNOTTI, P.J.A.D.

The State appeals from orders entered by the Law Division, which dismissed charges under N.J.S.A. 2C:29-9(a) that defendants purposely or knowingly disobeyed orders of pretrial release, entered by judges pursuant to the Criminal Justice Reform Act (CJRA or the Act), N.J.S.A. 2A:162-15 to -26. We address both appeals in this opinion. For the reasons that follow, we reverse.

I.

A. State v. McCray

On April 16, 2017, Antoine McCray was charged in complaint-warrant W-2017-1274-2004 with second-degree robbery, during which force was used and bodily injury inflicted, in violation of N.J.S.A. 2C:15-1(a)(1). The State thereafter filed a motion for his pretrial detention pursuant to the CJRA. After conducting a hearing, the court denied the State's motion and entered an order dated April 27, 2017, which stated that McCray was released pretrial subject to certain non-monetary conditions. One of the conditions was that defendant "[s]hall not commit any offense during the period of release."

On August 29, 2017, McCray was charged in complaint-warrant W-2017-0904-1205 with the disorderly persons offense of theft by unlawful taking, N.J.S.A. 2C:20-3(a) ; fourth-degree credit card theft, N.J.S.A. 2C:21-6(c)(1) ; third-degree identity theft, N.J.S.A. 2C:21-17(a)(1) ; and fourth-degree forgery, N.J.S.A. 2C:21-1(a)(2). He also was charged in complaint-summons S-2017-1155-1205 with fourth-degree contempt of court under N.J.S.A. 2C:29-9(a), for violating the court's April 27, 2017 pretrial release order.

On November 16, 2017, a grand jury returned Indictment No. 17-11-1345, which charged McCray with conspiracy to use a credit card fraudulently, contrary to N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:21-6(h), and other offenses. The grand jury also returned Indictment No. 17-11-1346, charging McCray with contempt of court under N.J.S.A. 2C:29-9(a) for violating the pretrial release order. The indictments alleged that he committed the offenses on or about August 29, 2017.

On December 7, 2017, a grand jury returned Indictment No. 17-12-1391, which charged McCray and others with third-degree conspiracy to use a credit card fraudulently, on or about August 2, 2017. In addition, on December 13, 2017, a grand jury returned Indictment No. 17-12-1418, which charged McCray and another person with several counts of third-degree conspiracy to use a credit card fraudulently, on or about August 4, 2017.

On February 5, 2018, McCray pled guilty to four counts of third-degree conspiracy to use a credit card fraudulently, specifically count four of Indictment No. 17-11-1345, count three of Indictment No. 17-12-1391, and counts one and three of Indictment No. 17-12-1418. He also pled guilty to fourth-degree contempt of court as charged in Indictment No. 17-11-1346.

At the plea hearing, McCray provided a factual basis for the pleas. Regarding the contempt charge, he admitted that the court previously had entered an order permitting his pretrial release, and as a condition of his release, he was "supposed to remain offense free." He also admitted that he committed the offenses for which he was pleading guilty while he was on pretrial release.

The judge who accepted the plea advised counsel that he had concerns about the validity of the contempt charge. The judge stated that on the sentencing date, he would determine whether to reject the plea to that offense and dismiss the indictment on the ground that it was "defective as a matter of law." The judge questioned whether the State could charge a defendant with contempt under N.J.S.A. 2C:29-9(a) based on a violation of the terms of a pretrial release order. The judge directed the parties to file briefs addressing the issue.

The judge heard oral argument on April 13, 2018, and filed a written opinion that day, in which the judge ruled that the contempt charge must be dismissed. In his opinion, the judge stated that neither the CJRA nor the court rules implementing the Act authorize a charge of contempt under N.J.S.A. 2C:29-9(a) as a sanction for violating conditions in a pretrial release order. The judge also reasoned that the constitutional protections against double jeopardy preclude the State from punishing a defendant for violating a provision in a pretrial release order, based on the commission of a new offense, and also punishing defendant for committing that offense.

The judge entered an order dated April 13, 2018, dismissing the indictment with prejudice. The judge denied the State's motion for a stay of the order pending appeal, and later sentenced defendant on the other charges to which he pled guilty. The judge imposed concurrent terms of four years of incarceration, each without a period of parole ineligibility. The State's appeal followed.

B. State v. Gabourel

Defendant Sahaile Gabourel was charged under complaint-warrant W-2018-2988-0906 with seven charges related to the possession and distribution of a controlled dangerous substance (CDS), including second-degree possession of a CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a) ; and third-degree possession of a CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7(a).

In an affidavit of probable cause, an officer of the Jersey City Police Department (JCPD) stated that on July 10, 2018, he observed Gabourel distribute heroin to another individual, in exchange for currency. The officer arrested Gabourel and found that he was in possession of twenty-nine glassine bags of heroin.

On July 11, 2018, the State filed a motion under the CJRA for Gabourel's pretrial detention. The judge conducted a hearing on July 16, 2018, and denied the State's motion. The judge stated that he was "going to put a curfew in place" and instructed Gabourel on this condition. The judge told Gabourel he had to remain in his residence from 6:00 p.m. to 6:00 a.m. The judge stated, "If you go out you're violating the terms of your release." The judge asked Gabourel if he understood those terms, and he replied, "Yes."

The judge entered an order dated July 16, 2018, ordering Gabourel's release on his own recognizance, subject to certain conditions. Among other conditions, the order stated that he must report to Pretrial Services telephonically and in person once every other week, and that Gabourel "[s]hall comply with the following curfew: 6pm-6am."

On July 23, 2018, at 8:09 p.m., two officers of the JCPD observed Gabourel standing on a street corner in Jersey City, in violation of the curfew. The officers apparently were aware of the curfew requirements of the pretrial release order, and determined that Gabourel was violating the order. The officers stopped and arrested him. He had three Percocet pills in his possession.

Gabourel was charged in complaint-warrant W-2018-3276-0906 with fourth-degree contempt of court, N.J.S.A. 2C:29-9(a) ; and possession of a prescription legend drug, N.J.S.A. 2C:35-10.5(a)(1), a disorderly persons offense. The State then filed a motion pursuant to N.J.S.A. 2A:162-24 for revocation of Gabourel's pretrial release.

The judge thereafter conducted a hearing on the State's motion. The judge found that Gabourel had disobeyed the pretrial release order by violating the curfew. The judge also found that the State met its burden for revocation of defendant's pretrial release. The judge found, however, that the CJRA did not permit a contempt charge for violating the pretrial release order. The judge entered an order dated August 9, 2018, dismissing the charge. We thereafter granted the State's motion for leave to appeal.

II.

On appeal, the State argues that the trial court judges erred by dismissing the contempt charges against defendants. The State contends the judges erred by finding that the CJRA and the court rules implementing the Act do not permit the State to charge a defendant with contempt under N.J.S.A. 2C:29-9(a) if the defendant violates a pretrial release order.

"[I]ndictments are presumed valid and should be dismissed only upon the clearest and plainest ground and only if palpably defective." State v. Schenkolewski, 301 N.J. Super. 115, 137, 693 A.2d 1173 (App. Div. 1997) (citing State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 8-19, 472 A.2d 1050 (1984) ; State v. Weleck, 10 N.J. 355, 364, 91 A.2d 751 (1952) ; State v. Engel, 249 N.J. Super. 336, 359-60, 592 A.2d 572 (App. Div. 1991) ). "A trial court ... should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case." State v. Morrison, 188 N.J. 2, 12-13, 902 A.2d 860 (2006) (citing State v. Hogan, 144 N.J. 216, 236, 676 A.2d 533 (1996) ; State v. Vasky, 218 N.J. Super. 487, 491, 528 A.2d 61 (App. Div. 1987) ).

We will not reverse an order dismissing an indictment unless shown to be a mistaken exercise of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59-60, 648 A.2d 1153 (App. Div. 1994) (quoting N.J. Trade Waste Ass'n, 96 N.J. at 18-19, 472 A.2d 1050 ). "However, if a trial court's ... decision is based upon a misconception of the law," we owe that "decision no particular deference." State v. Lyons, 417 N.J. Super. 251, 258, 9 A.3d 596 (App. Div. 2010) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J....