## RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A - 4417
- 16T6 STATE OF NEW JERSEY, Plaintiff

- Appellant,

v. IMANI WILLIAMS, Defendant
- Respondent.

_____________________________

Argued September 14, 2017
- Decided

B efore Judges Alvarez, Currier, and Geiger. On appeal from the Superior Court of New Jersey, La w Division, Burlington County, Warrant No. W - 2017
- 00 0508
- 317. Jennifer B. Paszkiewicz , Assistant Prosecutor, argued the cause for appellant (Scott A. Coffina, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brie f). Philip G. Pagano, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Jare d Dor f man , Assistant Deputy Public Defender, on the brief). The opinion of the court was delivered by CURRIER, J.A.D. In this appeal, we address whether, in a pretrial detention hearing, defendant's pregnancy should be given greater APPROVED FOR PUBLICATION September 29, 2017
APPELLATE DIVISION

September 29, 2017A - 4417
- 16T6 2 consideration than any other pretrial detention factor in a judge's assessment under the Criminal Justice Reform Act (Act) , N.J.S.A. 2A:162
- 15 to
- 26. Because we concl ude that the trial judge abused his discretion in giving defendant's pregnancy greater weight than all other pertinent factors in his determination to release her, we reverse. Pregnancy, like any other medical condition, is only considered for its impact on the risk of a defendant posing a danger to the community, obstructing justice or failing to appear in court. N.J.S.A.
2A:162
- 20. In June 2017, defendant was charged with second

- degree robbery , N.J.S.A. 2C:15
- 1(a)(1) ; second
- degree aggravated assault, N.J.S.A. 2C:12
- 1(b)(1) ; and disorderly persons theft by unlawful taking, N.J.S.A. 2C:20
- 3(a) . The victim of the crimes told police that defendant and another person had "jumped" her from behind and thrown her to the ground. She was punched and kicked in the head, face , and body while on the ground, resulting in several shattered teeth as well as swelling and bruising to her eyes and face. Money was stolen from her purse. On the Public Safety Assessment (PSA), N.J.S.A . 2 A:162
- 25, the Pretrial Services P rogram rated defendant a six for new criminal activity and a five for failure to appear. It also flagged defendant for an elevated risk of violence. TheA - 4417
- 16T6 3 recommendation was that defendant remain in custody pending trial. The State filed a notice for pretr ial detention, N.J.S.A.
2A:162
- 19(a), and a hearing was conducted on June 1 3 , 2017 . In support of its request that defendant be detained pending trial, the State noted defendant's extensive juvenile history , including several violations of probation, two pending disorderly persons charges , and a 2016 disorderly persons conviction for assault by auto resulting in a sixty

- day period of incarceration. Defendant failed to appear for court six times within the previous two years. Defense counsel informed the court that defendant had a
full
- time job and had recently learned that she was eight weeks pregnant. He requested she be released under condition of in

person reporting. Counsel argued that defendant's "employment as well as her pregnancy would assure bo th her appearance in court as well as the safety of the community." After the judge found the State had established probable cause, he turned to the request for detention pending trial. The judge explained that he had reviewed the PSA and its recommendati on, and a cknowledged the s erious second

- degree charges and defendant's multiple prior failures to appear. The judge further stated that he was familiar with defendant'sA - 4417
- 16T6 4 extensive juvenile history, 1 having served as the county's juvenile judge during the p ertinent timeframe. Nevertheless , the judge determined that the State's proofs fell "just slightly below clear and convincing evidence" because the PSA did not take into account that defendant was eight weeks pregnant or that her pregnancy "present[ed] is sues with regard to care in a correctional facility." Th e judge concluded that defendant's pregnancy required the denial of the State's motion for pretrial detention. The judge explained that he would impose some very strict pretrial release provisions i n light of the fact that the State was just a tad short of clear and convincing evidence and [that his decision] was impacted by [defendant's] pregnancy . . . and the issues that would pose to the correctional facility and correctional staff in terms o f . . . prenatal care. He warned defendant that pregnancy was "a card that [she could] play once" and if she committed a new offense or violated a condition of her release, whether she was "eight weeks pregnant, six months pregnant, eight months pregnant, it [would] not make any difference whatsoever and the [c]ourt [would] evaluate the facts independent[ly] at that time . "

1 Defendant was twenty years old at the time of the detention hearing.A - 4417
- 16T6 5 As conditions of release, the judge required defendant to report in

- person weekly to pretrial services . The judge also imposed a cur few from 5:00 p.m. to 6:00 a.m. daily, permitting defendant to leave her residence only to go to work and prenatal appointments. 2
The c ourt granted the State's request for a stay of defendant's release pending appeal. In discussing the application for a st ay, the judge commented:

i n light of the [PSA] and the history of [defendant] who is only 20 but who had an extensive juvenile history, that . . . the State was very close to establishing by clear and convincing evidence . . . that [defendant] should be detained, but . . . the court believes that . . . [defendant's pregnancy] justified her release on conditions . . . . The judge further remarked:
b ut for the pregnancy, . . . the [c]ourt would have detained [defendant]. Her scores were . . . extremely high on the [PSA]. She has a significant history for a person who is 20 years old. . . . [ A] ll of the necessary indicia were there which the [c]ourt felt were . . . mitigated by . . . the fact that [defendant] is . . . ei ght weeks pregnant .

2 Neither defendant n or her counsel made any representation that she had seen a doctor for her pregnancy or w as receiving prenatal care.A - 4417
- 16T6 6 We granted the State leave to appeal the trial court's order on an emerge nt basis to review the question : w hether defendant's pregnancy i s a medical condition sufficient to override all other applicable factors , thus requiring pretrial
release . The State argues tha t the trial court abused its discretion in denying pretrial detention by a cc ording undue weight to defendant's pregnancy , and speculating that defendant's medical needs could not be met while in jail. We
agree. The Act took effect on January 1, 2017. I t is premised 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 c riminal justice process." I f a court finds by clear and convincing evidence that "no condition or combination of conditions" would achieve those goals, the court, upon motion by the prosecutor, may order that a defendant be held pending trial. [ State v. Robinson , 229 N.J. 44, 55 (2017) (quoting N.J.S.A. 2A:162
- 15 )] . Under Section 18 of the Act, the trial court is authorized to order pretrial detention if it finds by clear and convincing evidence that no conditions of release would reasonably assure a defendant's appearance in court, the safety of the community, and the integrity of the criminal justice process. N.J.S.A.A - 4417
- 16T6 7 2A:162
- 18(a ). At the hearing i tself, "the court may take into account" the following:

a. The nature and circumstances of the offense charged; 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, including: (1) the eligible defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (2) whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state; d. The nature and seriousness of the danger to any other person or the community that would be posed by the eligi ble 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 posedA - 4417
- 16T6 8 by the eligible defendant's release, if applicable; and
f. The release recommendation of the pretrial services program obtained using a risk assessment instrument under [ N.J.S.A. 2A:162
- 25] . [ N.J.S.A. 2A:162
- 20 ] . A lthough the trial judge here properly considered several of the listed applicable factors, he elevated defendant's medical condition of pregnancy above all of the other pertinent
factors , based on his unfounded speculati o n that her pregnancy

m ight cause "is s ues" to the correctional fa cility. 3 The judge determined that defe n dant's pregnancy compelled her release. We disagree. In determining whether pretrial detention is appropriate, the trial court should consider all of the applicable factors noted in the statute, giving appropriate weight to each. We do not sugges t that there will never be circumstances under which a defendant's pregnancy could be a determining factor in a judicial deci sio n regarding pretrial detention. A trial court could conclude that pregnancy, like any other
med ical condition, may require a defenda n t's relea s e as the

3 We note that N.J.A.C. 10A:31
- 13.10 requires c ounty correctional facilities to promptly provide pregnant inmates with medical s ervices , including prenatal evaluation and care, obstetrical services , and postpart um and follow
- up medical care.A - 4417
- 16T6 9 condit io n itself might affect the risk of the defendant posing a danger to the community, obstructing justice or failing to appear in court. See N.J.S.A. 2A:162
- 20 . Here, however, the re is no indication th a t defe n d a nt's pregnancy was classified as high risk or pre s ented any unusual medical complic a tions requiring specialized treatment. Nor is there any indication that the jai l was unable to provide appropriate prenatal medical
care to defendan t. T he reasons given by the trial judge for defendant's pregnancy warranting her release were speculative, unsupported b y any facts in the record , and , there fore, i rrelevant t o a pret r ia l detention det e rminati o n.
I n its orders denying the State's motion for pretrial detention, the trial court did not explain in writing its reasons for deviating from the recommendation in the PSA . In
State v. C.W. , 449 N.J. Super. 231, 263 (App. Div. 2017), we
stated that N.J.S.A. 2A:162
- 23(a)(2) requires a court to "expl ain in writing specifically why it deviated from the [PSA] recommendation advising against [a] defendant's release." While ordinarily we would remand the matter to the trial court for compliance with the statute, we sufficiently understand the

reasons for the denial of d etention. The trial judge was thorough and candid in stating his reasoning for ordering defendant's release contrary to the PSA recommendation, and ,A - 4417
- 16T6 10 thus, a remand would be an unnecessary use of stretched

resources. In giving undue weight to defendant's pregnancy over all other applicable factors , and failing to consider what import the pregnancy might have on her risk of posing a danger to the community, obstructing justice or failing to appear in court, the judge abused his discretion . S ee C. W . , supra , 449 N.J. Super. at 255 . Therefore , we reverse the trial court's decision
and remand for entry of an order of pretrial detention.
Reversed.