State v. S.N., A–60 September Term 2016

• Decision Date: 30 January 2018
• Docket Number: 079320,A–60 September Term 2016
• Citation: 231 N.J. 497,176 A.3d 813
• Court: New Jersey Supreme Court
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. S.N., Defendant–Respondent.

231 N.J. 497

176 A.3d 813

STATE of New Jersey, Plaintiff–Appellant,

v.S.N., Defendant–Respondent.

A–60 September Term 2016

079320

Supreme Court of New Jersey.

Argued September 11, 2017

Decided January 30, 2018

Sarah Lichter, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Sarah Lichter, of counsel and on the brief; Jeffrey L. Weinstein, Hunterdon County Assistant Prosecutor, on the brief).

Philip De Vencentes argued the cause for respondent (Galantucci, Patuto, De Vencentes, Potter & Doyle, attorneys; Philip De Vencentes, on the briefs; Richard G. Potter, of counsel and on the briefs).

Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor Director, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Richard T. Burke, President, attorney; Frank J. Ducoat, of counsel and on the brief; Kayla Elizabeth Rowe, on the brief).

Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Alexander R. Shalom, Edward L. Barocas, and Jeanne M. LoCicero, on the brief).

Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Elizabeth C. Jarit, of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

In this appeal, we determine the proper standard for appellate review of pretrial detention decisions under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162–15 to –26. After doing so, we must apply that standard to the facts of the present appeal.

We conclude that 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.

Here, we affirm the Appellate Division's judgment reversing the trial court's decision to detain defendant. We do so because the trial court relied on inappropriate factors and failed to consider all relevant factors in finding that there was sufficient evidence before the court to overcome the presumption of defendant's release.

I.

The facts and procedural history are culled from the record of defendant's detention hearing.

In March 2017, law enforcement obtained an arrest warrant for defendant S.N.¹ for acts alleged to have been committed against his stepdaughter² in 2012. In a complaint-warrant, the State charged defendant with first-degree aggravated sexual assault on a person under the age of thirteen, N.J.S.A. 2C:14–2(a)(1) ; fourth-degree lewdness, N.J.S.A. 2C:14–4(b)(1) ; and second-degree child endangerment, N.J.S.A. 2C:24–4(a).³ The affidavit of probable cause in support of the complaint-warrant stated that the victim told a staff member at her school that defendant came into her bedroom and sexually assaulted her approximately fifty times while she was in the sixth and seventh grades. The affidavit also disclosed that, in 2015, the victim told a friend that defendant had "touched her in a sexual manner." In addition, the State prepared a preliminary law enforcement incident report (PLEIR), which stated that "defendant was known to the victim as [f]amily."

Following defendant's arrest, a pretrial services officer prepared a Public Safety Assessment (PSA)⁴ that rated defendant a 1 out of 6—the lowest possible risk score—for both failure to appear and new criminal activity. The PSA noted that defendant did not have any prior criminal history or failures to appear, but the current charges pending against defendant stemmed from a violent offense. Despite the low risk scores, the PSA concluded "No Release Recommended."

The State moved for pretrial detention, pursuant to N.J.S.A. 2A:162–19. In support of its pretrial detention motion, the prosecution certified that the charged crime could subject defendant to "an ordinary or extended term of life imprisonment,"⁵ there is a "serious risk" that "defendant will not appear in court," and "defendant will pose a danger to any other person or the community." In addition, the certification stated, "[d]efendant's victim is his step-daughter. Defendant is a risk to harm and intimidate his victim and her mother and to obstruct justice by interfering with the investigation and witnesses. Defendant is a risk of flight because his biological mother and sister live in Canada."

At the detention hearing, the State submitted the affidavit of probable cause in support of the complaint-warrant, the PLEIR,⁶ and the PSA. The prosecutor claimed that the PSA did not take into account defendant's dual citizenship or the risk to the victim because "[defendant] knows where she lives. He knows where her mother lives. And the fear is that if he's released, he will harm them physically." Regarding the potential for obstruction, the prosecutor stated that

[t]hese sorts of cases are sensitive in the sense that if a defendant has access to the victim or other family members, we know—and it's common sense—that the defendant often tries to obstruct justice by trying to convince family members and other people in the family to say it didn't happen, or put pressure on the victim.

The State also sought a restraining order to prohibit defendant from having contact with the victim, her mother, and his three biological children (the victim's half-siblings).

Defense counsel countered that the State did not present clear and convincing evidence to support its detention motion, and that the State's arguments were based on "mere speculation." Defense counsel further noted that defendant had no prior record, including no disorderly persons offenses, had no failures to appear, was gainfully employed, and had the support of his adoptive parents, who live in New Jersey. Regarding defendant's biological mother in Canada, defense counsel stated defendant has not had "telephonic or face-to-face contact with her" and defendant "doesn't even know where she lives." Counsel noted that defendant's biological mother had visited New Jersey "more than a decade ago," but it "ended in [defendant's] getting a restraining order against her, [and] her being physically removed from his house by the police."

Further, defense counsel claimed that defendant lived in the same home as the victim "until a couple of years ago" and that "no further problems apparently ... have been even alleged." Defense counsel also asserted that defendant is involved in the lives of his three biological children and has had "constant contact" with them despite no longer living in the same household.

The trial court issued an oral ruling at the end of the detention hearing granting the State's motion for pretrial detention and the restraining order. The court found that the State had established probable cause that defendant committed the charged offenses. In making the pretrial detention determination, the judge reviewed the circumstances of the charged offenses, the potential sentence if convicted, defendant's risk of flight in light of his dual U.S. and Canadian citizenship, and the potential for defendant's obstruction of the criminal justice process "[b]ased on the fact that this is essentially a he said, she said situation."

The court gave great weight to "the nature and seriousness of the danger to any other person or community that would be posed by the defendant's release." Also, the court specifically found that defendant is eligible for detention under the statute "because this is a first degree [offense] with No Early Release attaching to it pursuant to N.J.S.A. 2A:162–19(a)(1)." The court summarized its detention decision as follows:

Based on the factors I've outlined, the Court does find that the nature and circumstances should be given great weight, as well as the flight risk due to dual citizenship. Also, the protection of the safety of any other person or the community, as well as the fact that—and/or the defendant will not obstruct or attempt to obstruct the criminal justice process.

In making my decision today I've given great weight to NERA,⁷ the fact that this is a NERA offense and first degree, the dual citizenship, due to the extensi[ve] exposure of incarceration if convicted, the fact that release was not recommended, and the fact that this is considered a violent offense. Therefore, based on all of the above the Court will grant the State's motion and pretrial detention will occur.

In "[t]he history and characteristics of the defendant" section of the pretrial detention order, the court wrote, "[r]isk of flight—family in Canada, no prior record, dual citizenship, employed. Resident of NJ." Under "[t]he nature and seriousness of the danger to any other person or the community that would be posed by the defendant's release," the court wrote that the alleged crime was a first-degree aggravated sexual assault and further noted "NERA." Regarding the risk of obstruction, the court wrote "potential to intimidate." The court also listed "Further Reasons for Pretrial Detention":

- NERA offense—[first degree]

- [D]ual citizenship creates a high risk of flight due to the extensive exposure to incarceration

- Release not recommended

- Violent offense

Pursuant to Rule 2:9–13, defendant appealed from the trial court's pretrial detention order, and the Appellate Division reversed and released defendant with conditions. The panel, citing State v. C.W., 449 N.J. Super. 231, 156 A.3d 1088 (App. Div. 2017), found that "[t]he trial court abused its discretion by not considering defendant's age, level of prior criminal involvement and ties to the community." The Appellate Division required as part of defendant's release that "defendant must report to pretrial detention as frequently as necessary to determine his compliance with restraining orders prohibiting him from having any contact with the victim or her family .... [and] must...