State v. Molchor

• Decision Date: 08 July 2020
• Docket Number: DOCKET NOS. A-2009-19T6,A-2010-19T6
• Citation: 464 N.J.Super. 274,235 A.3d 235
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Juan C. MOLCHOR, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent, v. Jose A. Rios, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

464 N.J.Super. 274

235 A.3d 235

STATE of New Jersey, Plaintiff-Respondent,

v.Juan C. MOLCHOR, Defendant-Appellant.

State of New Jersey, Plaintiff-Respondent,

v.Jose A. Rios, Defendant-Appellant.

DOCKET NOS. A-2009-19T6

A-2010-19T6

Superior Court of New Jersey, Appellate Division.

Argued telephonically May 4, 2020

Decided July 8, 2020

Cristina L. Vazquez, Cherry Hill, argued the cause for appellant Juan C. Molchor.

Tamar Yael Lerer, Assistant Deputy Public Defender, argued the cause for appellant Jose A. Rios (Joseph E. Krakora, Public Defender, attorney; Tamar Yael Lerer, of counsel and on the briefs).

Jonathan I. Amira, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christine A. Hoffman, Acting Gloucester County Prosecutor, attorney; Jonathan I. Amira, of counsel and on the briefs).

Sarah C. Hunt, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah C. Hunt, of counsel and on the brief).

Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey, attorneys; Katherine Eliza Haas, Alexander R. Shalom, and Jeanne M. LoCicero, on the brief).

Before Judges Messano, Ostrer and Susswein.

The opinion of the court was delivered by

OSTRER, J.A.D.

These consolidated pretrial detention appeals raise the question: does the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, authorize a court to detain arrestees who are undocumented immigrants in order to thwart their potential removal from the country by federal immigration officials, and thereby to assure they appear at trial? Construing the Act in light of its legislative history and persuasive federal authority, we conclude it does not. Rather, the risk of a defendant's failure to appear justifying detention must arise from the defendant's own misconduct, not the independent acts of a separate arm of government that may prevent a defendant from appearing. The trial court erred in detaining defendants in part out of concern that their possible removal from the country would prevent their appearance at trial. The trial court also lacked sufficient evidence for its finding that no conditions would reasonably assure that they would not obstruct justice, and, in Rios's case, would not pose a risk to the safety of others. Therefore, we reverse the trial court's orders and remand for further consideration.

I.

Jose A. Rios and Juan Molchor were both arrested and charged with second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and fourth degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). According to the State's version of events,¹ Rios, Molchor and a third person engaged in a fight with an acquaintance, Hugo Alvarez, at a party at Alvarez's address. Defendants allegedly punched Alvarez, and struck him repeatedly on the head with beer bottles. Alvarez suffered a severe laceration, and briefly lost consciousness. Defendants also allegedly damaged Alvarez's and another vehicle. Both Rios and Molchor left the scene in a car, but police stopped them. They appeared to be under the influence when arrested. Rios was also charged with driving under the influence. N.J.S.A. 39:4-50. He was twenty-two years old. Molchor was twenty-one.

On the risk scale for failure to appear, defendants' Public Safety Assessments (PSAs) rated them both "1," the lowest risk. The PSAs rated them "2" on the risk scale for new criminal activity. Neither defendant triggered a "New Violent Criminal Activity Flag." Defendants had no prior convictions, failures to appear, or adjudications of delinquency. The PSAs recommended defendants' release conditioned on monthly reporting.

Highlighting defendants' immigration status, the State moved for pretrial detention in separate hearings. The State argued that because Rios is "undocumented," he posed a "risk of flight," and "there is concern that if he is taken into federal custody on possibly an ICE [Immigration and Customs Enforcement] detainer that the alleged victim will not be able to have the ... benefit of justice from having a fair trial ...." The assistant prosecutor stated he believed it "very likely" that would happen, without presenting any evidence ICE was interested in Rios.

In making a similar argument in Molchor's case, the assistant prosecutor appeared to equate Molchor's potential involuntary detention by federal immigration officials as "flight." He stated, "[H]e is an undocumented immigrant which gives the State serious concern with respect to risk of flight given the nature and seriousness of these charges. If for instance Mr. Molchor was to become detained in federal custody the State would have serious difficulty having him appear ...."

The State argued that the PSA "[did] not take immigration status into account," and suggested that Rios could have "prior failures to appear or other matters [the State was] unaware of if he used other identifiers." In both cases, the State also asserted that defendants lived within "five minutes" of Alvarez, and posed a risk of retaliation against the alleged victim. In each case, the assistant prosecutor also argued that each defendant was "charged with a crime of serious risk that he will impose a danger to any other person of the community."

In opposing detention, defense counsel highlighted defendants' PSA scores and recommendations of release. He argued in Molchor's case that there was no evidence of an ICE detainer; and the State could inform ICE that Molchor's presence was needed at trial. He argued in both cases that a no-contact order would suffice to protect the alleged victim. Lastly, he argued the State, in alleging risk to the safety of others, inappropriately relied solely on the offense charged.

The court accepted the State's argument that detention was needed to prevent defendants' non-appearance as a result of their potential removal from the country. In Rios's case, the court stated, in response to defense counsel's argument for release, "[E]verything you say I agree with under normal circumstances, but your client is an admitted, undocumented illegal alien which raises major concerns for whether he's going to be here to answer to these charges." The judge indicated that his concern related not to the risk Rios might intentionally absent himself, but the risk ICE might prevent him from appearing: "ICE needs to be contacted before he is released. They may choose to deport him at this point, I don't know." The judge then referred to the risk of "flight," without clarifying whether he meant defendant's volitional acts, or ICE's intervention. "I'm not keeping him because of the seriousness of the charges, but I am keeping him because of the seriousness of the charges and the concern ... of flight which will lead to his failure to appear in court for these matters."

Without specifically addressing the efficacy of a no-contact order, the judge added, "[T]here's a concern, which I don't think can be resolved, with him attempting to obstruct the criminal justice process by contact with the victims in this case."

In Molchor's case, the judge again expressed concern that defendant would not appear because of his immigration status. He stated that "everything else being equal," he "would probably [be] subject to release." However, "the seriousness of the charge coupled with the fact that [he was] looking at severe jail time[,] [a]nd the fact that he is an illegal undocumented alien" created "great concern ... that he [would] be available to answer for these charges." The judge added that "ICE needs to be notified by the State .... Let it shake out where it shakes out. I don't feel comfortable releasing him." The court also stated that Molchor could potentially "interfere with the State's process by contact with the victim."

The court entered nearly identical written orders that embodied the court's conclusions. In each, the court included, as its sole finding of fact and conclusions of law, "The nature and circumstances of the offenses charged. Particular circumstances, specifically, Defendant is an illegal alien." Additionally, the court stated in Rios's order, "Based upon the seriousness of these charges and his immigration status, the court finds by clear and convincing evidence that there are no conditions of release which will assure his appearance in court." The court stated virtually the same thing in Molchor's order.

The court also relied upon the seriousness of the charges and defendant's immigration status in finding there were no conditions "which will assure that the defendant will not be attempting to obstruct the criminal justice processes by contact with the victim." Without explanation, in Rios's order, the court also found by clear and convincing evidence that there was no amount of monetary bail, non-monetary conditions, or a combination of the two that "would reasonably assure ... the protection of the safety of any other person or the community ...."

These appeals followed. We asked for supplemental briefs and granted amicus status to the Attorney General and the American Civil Liberties Union (ACLU).

II.

Defendants and the ACLU argue defendants were detained because of their immigration status, and the perceived threat that federal immigration action would prevent them from appearing. They contend the CJRA does not permit detention on those grounds. They argue the risk a defendant may fail to appear justifying detention must arise from the defendant's own volitional acts, not the intervening acts of another governmental entity. In the alternative, they argue if the threat of removal is an appropriate consideration regardless of a defendant's volitional acts, the threat must be imminent, and the State must diligently seek its delay. As there was no evidence that ICE had even lodged a detainer or otherwise expressed interest in defendants – and given the inherent...