RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4896-18T6

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHIRAZ K. KHAN,

Defendant-Appellant.

_________________________

Argued October 2, 2019 – Decided October 23, 2019

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 19-06-1418.

Robin Kay Lord argued the cause for appellant.

John J. Santoliquido, Assistant Prosecutor, argued the 

cause for respondent (Damon G. Tyner, Atlantic 

County Prosecutor, attorney; John J. Santoliquido, of 

counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant appeals from an order entered by the Law Division on June 11, 

2019, which states that defendant shall be detained pretrial pursuant to the 

Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. We affirm. 

The record shows that on April 3, 2019, Egg Harbor Township police 

officers conducted a stop of a car defendant was driving due to certain motor 

vehicle violations, specifically, a fictitious registration, multiple license plate 

covers, and tinted windows. Defendant was the only occupant of the car. He

admitted the car belonged to him, and no one else had entered or driven the car. 

According to the police, defendant consented to a search of the car. 

The officers searched the vehicle and located seven Percocet pills, which 

defendant stated were his. In an after-market compartment in the car, commonly 

known as a "trap," the officers found promethazine hydrochloride and 

approximately 11.2 ounces of a white powdery substance, which was determined

to be cocaine. 

Defendant was charged in a complaint with first-degree

manufacturing/distribution of five ounces or more of a controlled dangerous 

substance (CDS) or analog (cocaine); in violation of N.J.S.A. 2C:35-5(a)(1); 

third-degree possession of a CDS or analog (Percocet), in violation of N.J.S.A. 

2C:35-10(a)(1); third-degree possession of a CDS or analog (promethazine 
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hydrochloride), in violation of N.J.S.A. 2C:35-10(a)(1); and third-degree 

possession of a CDS (cocaine), in violation of N.J.S.A. 2C:35-10(a)(1). In 

addition, defendant was charged in another complaint with third-degree 

distribution of a CDS or analog (cocaine) on or near school property, in violation 

of N.J.S.A. 2C:35-7(a). 

The State thereafter filed a motion for defendant's pretrial detention

pursuant to the CJRA. On April 16, 2019, the judge conducted a hearing and 

placed an oral decision on the record. The judge stated that based on defendant's 

prior criminal record, he faced a mandatory extended term of incarceration, 

which could include a life sentence. The judge noted that there is a presumption 

of detention under N.J.S.A. 2A:162-19(b), which defendant overcame by a 

preponderance of the evidence. 

The judge found, however, that the State had shown by clear and 

convincing evidence that "no amount of monetary bail, non-monetary conditions 

or combination thereof, would reasonably assure the defendant's appearance [in 

court] when required, and the protection of the safety of any other persons or 

the community, and that the defendant will not obstruct or attempt to obstruct 

the criminal justice process." The judge accordingly entered an order which 

required defendant's pretrial detention. 
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Defendant appealed and argued the judge's findings that he had rebutted 

the presumption of detention and that the State had established grounds for his 

pretrial detention were inconsistent and contrary to the applicable statutes and 

court rule. We entered an order dated May 17, 2019, remanding the matter to 

the trial court:

to address, preferably in writing, defendant's argument 

that the court impermissibly and illogically used the 

very same proofs in its April 16, 2019 oral ruling . . . to 

find that defendant had rebutted the presumption of 

incarceration under N.J.S.A. 2A:162-19(b), while 

simultaneously finding that the State had overcome that 

showing by clear and convincing evidence under 

N.J.S.A. 2A:162-19(e)(2). The findings of fact and 

conclusions of law in the court's written companion 

order of April 16, 2019 does not discuss presumptions. 

The court shall clarify or reconcile its analysis and 

determine if analysis of presumptions is even 

appropriate. 

On June 7, 2019, the judge filed a letter opinion stating that he had 

considered the proofs in light of the presumptions in the CJRA. The judge found

that defendant had rebutted the presumption of detention in N.J.S.A. 2A:162-

19(b) by a preponderance of the evidence, specifically, the recommendation for 

release with conditions in the Public Safety Assessment (PSA) issued by the 

Pretrial Services Program (PSP). 
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The judge further found that upon consideration of the totality of the 

circumstances, the State had established grounds for defendant's pretrial 

detention by clear and convincing evidence. The judge determined that no 

amount of monetary bail, non-monetary conditions, or a combination thereof 

would ensure defendant's appearance, the safety of any person or the public, or 

the integrity of the criminal justice system. The judge entered an order dated 

June 11, 2019, which continued defendant's pretrial detention. This appeal 

followed. 

The CJRA permits the State to file a motion in the trial court for the 

pretrial detention of a defendant who is charged with certain offenses. N.J.S.A. 

2A:162-19(a). When the State seeks the pretrial detention of a defendant who 

has not been indicted, the court first must determine whether there is probable 

cause the defendant committed the charged offense. If the court finds probable 

cause that the defendant committed murder in violation of N.J.S.A. 2C:11-3, or 

any crime for which the defendant would be eligible for an ordinary or extended 

term of life imprisonment, 

there shall be a rebuttable presumption that the eligible

defendant shall be detained pending trial because no 

amount of monetary bail, non-monetary condition 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 
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other person or the community, and that the eligible 

defendant will not obstruct or attempt to obstruct the 

criminal justice process. 

[N.J.S.A. 2C:162-19(b).] 

The presumption of pretrial detention may be rebutted by a preponderance 

of the proof "provided by the eligible defendant, the prosecutor, or from other 

materials submitted to the court." N.J.S.A. 2A:162-19(e)(2). Furthermore, "if 

the presumption is rebutted by sufficient proof, the prosecutor shall have the 

opportunity to establish that the grounds for pretrial detention exist[.]" Ibid. To 

establish grounds for pretrial detention, the prosecutor must show by clear and 

convincing evidence

that no amount of monetary bail, non-monetary 

conditions or combination of monetary bail and

conditions will reasonably assure the eligible 

defendant's appearance in court when required, the 

protection of the safety or any other person or the 

community, and that the eligible defendant will not 

obstruct or attempt to obstruct the criminal justice 

process.

[N.J.S.A. 2A:162-19(e)(3).] 

Here, it is undisputed that defendant has been charged with an offense for 

which he would be eligible for an ordinary or extended term of life 

imprisonment. Therefore, under the CJRA, there is a rebuttable presumption 

that defendant should be detained pretrial. N.J.S.A. 2A:162-19(b). Here, the 
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judge found that the presumption had been rebutted by the recommendation in 

the PSA, which rated defendant as a "4" for risk of Failure to Appear, and "5" 

for risk of New Criminal Activity, but recommended defendant's release with 

weekly reporting. 

The judge determined, however, that the State had established grounds for 

defendant's pretrial detention, as permitted by N.J.S.A. 2A:162-19(e)(3). The 

judge stated that the nature and circumstances of the charged offense is "a very 

weighty factor." The judge found that due to the nature and degree of the 

offenses and defendant's criminal record, there is a significant risk of flight. 

The judge noted that the record shows that during the stop and later search, 

the officers found 11.2 ounces of cocaine hidden in the trap in the car, which 

"bespeaks an intent to distribute[.]" The judge stated that "[n]arcotics in this 

amount also endanger[] public safety." 

The judge also stated that the State had "very weighty evidence" to support 

the charges, which include the personal observations of the officers involved in 

the stop; defendant's statement acknowledging possession of the vehicle and the 

Percocet in the car; and the CDS paraphernalia the officers had recovered. The 

judge acknowledged that defendant had raised issues regarding the search.
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Moreover, the judge noted that he had considered defendant's history and 

characteristics, specifically, his character, physical and mental condition, and 

family ties. The judge considered defendant's lengthy criminal history. The 

judge stated that taking all of these factors into consideration, other forms of 

release with conditions would not be adequate to protect the community and 

assure defendant's presence when required. The judge stated that defendant's 

"escalating conduct" makes it clear defendant presents a risk to the community 

and a risk of reoffending.

In addition, the judge addressed the nature and seriousness of the risk that 

defendant would obstruct or attempt to obstruct the criminal justice process if 

released pretrial. The judge noted that defendant has a history of failing to 

appear. The judge also stated that defendant's use of a hidden compartment to 

"secret narcotics" shows a level of sophistication, which "bespeaks [the] ability 

and the ongoing likelihood that [defendant] will attempt to obstruct the criminal 

justice process." 

The judge found that the State had established grounds for defendant's 

pretrial detention by clear and convincing evidence. The judge noted that while 

he had relied upon some of the same proofs in determining that defendant had 

rebutted the presumption of detention, and that the PSA had helped defendant 
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overcome that presumption, the PSA failed to consider "a number of weighty 

facts." The judge concluded that considering the PSA, as well as the weight of 

the evidence, the nature of the charged offenses, and the pertinent facts and 

circumstances, defendant should be detained pretrial. 

On appeal, defendant argues that the burden-shifting standards in the 

CJRA and the trial court's application of those standards are internally 

inconsistent. Defendant contends the trial court relied upon the same facts and 

arguments to reach the conclusions that he rebutted the presumption of detention

under N.J.S.A. 2A:162-19(b), and that the State established grounds for his 

detention, under N.J.S.A. 2A:162-19(e)(3). We disagree.

As noted, in his opinion, the judge explained that he based his finding that 

defendant had rebutted the presumption of detention upon the recommendation 

for release in the PSA. The judge also explained that he based his finding that 

the State had established grounds for detention upon all of the relevant facts and 

circumstances. 

Thus, the court did not rely upon the same facts and arguments to support 

its findings that defendant rebutted the presumption of detention and that the 

State had established by clear and convincing evidence the grounds for 

defendant's pretrial detention. We therefore reject defendant's contention that 
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the burden-shifting provisions of the CJRA are internally inconsistent and that 

they were inconsistently applied in this case. 

Defendant also argues that the fact that he has been charged with a crime 

for which he is eligible for an extended term of life imprisonment is the reason 

for the presumption of detention under N.J.S.A. 2A:162-19(b). He therefore

contends the court may not rely upon the nature of that offense or the potential 

life sentence in deciding whether the State has established grounds for detention

under N.J.S.A. 2A:162-19(e)(3). Again, we disagree. 

Nothing in the CJRA precludes the court from taking the nature of the 

offense and potential sentence into consideration in determining whether the 

presumption of detention under N.J.S.A. 2A:162-19(b) applied and in deciding 

whether the State has proven by clear and convincing evidence that defendant 

should be detained pretrial, as permitted by N.J.S.A. 2A:162-19(e)(3). This is 

not impermissible double-counting. 

Indeed, N.J.S.A. 2A:162-20 expressly provides that in determining 

whether the State has met its burden of showing whether a defendant should be 

detained pretrial, the court may take into account: 

a. The nature and circumstances of the offense charged;
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b. The weight of the evidence against the eligible 

defendant, except that the court may consider the 

admissibility of any evidence sought to be excluded; 

c. The history and characteristics of the eligible 

defendant, . . . 

d. The nature and seriousness of the danger to any other 

person or the community that would be posed by the 

eligible defendant's release, if applicable;

e. The nature and seriousness of the risk of obstructing 

or attempting to obstruct the criminal justice process 

that would be posed by the eligible defendant's release, 

if applicable; and

f. The release recommendation of the pretrial services 

program . . . 

Defendant also argues that the record does not support the trial court's 

determination that the State established grounds for his pretrial detention. He 

contends that in the CJRA the Legislature intended to limit pretrial detention to 

only the most serious cases where the presumption of detention under N.J.S.A. 

2A:162-19(b) applies. He asserts that this case does not fall within that 

category. 

Defendant contends he established he has substantial ties to the 

community, was employed, and only had one previous failure to appear. He

asserts that the State failed to show that he was a flight risk and that such an 
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assumption cannot be made in every case where the defendant faces a lengthy 

prison term. 

Defendant further argues that the judge improperly relied upon 

speculation and assumptions when he stated that defendant's release would pose 

a risk to the community. He also asserts that the record provides no basis for 

the assumption that he would obstruct or attempt to obstruct the criminal justice 

process.

We note that the decision on whether to order a defendant's pretrial 

detention is committed to the sound discretion of the trial court and will not be 

reversed unless shown to be a mistaken exercise of discretion. State v. S.N., 

231 N.J. 497, 515 (2018) (citing State v. C.W., 449 N.J. Super. 231, 255 (App. 

Div. 2017)). To show an abuse of discretion, the defendant must establish that 

the trial court's decision "rest[s] on an impermissible basis," "was based upon a 

consideration of irrelevant or inappropriate factors," shows that the court 

"fail[ed] to take into consideration all relevant factors," and represents "a clear 

error of judgment." Id. at 515-16 (quoting C.W., 449 N.J. Super. at 255). 

Here, the judge noted that defendant was found with 11.2 ounces of 

cocaine, which was concealed in a compartment or "trap" in his car. The judge

found that possession of CDS in this amount bespeaks an intent to distribute and 
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poses a potential danger to the community. The judge further found that 

defendant has a lengthy criminal history and other forms of release had proven 

inadequate to protect the community. The judge also found that because 

defendant is eligible for an extended term of life imprisonment, he is "an 

extreme flight risk." 

In addition, the judge found that defendant had attempted to frustrate the 

criminal justice process by using license plate covers, a fictitious vehicle 

registration, and a hidden compartment to conceal the CDS. The judge stated 

that defendant's use of a hidden compartment in the car to conceal the CDS

shows a level of sophistication, which indicates defendant has the ability to 

obstruct the criminal justice process and is likely to do so. 

We are convinced there is sufficient evidence in the record to support the 

trial court's findings of fact. The findings are not based on speculation or 

unsupported assumptions. We conclude the order requiring defendant's pretrial 

detention is not a mistaken exercise of discretion. 

Affirmed.