RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4778-16T6

 A-5364-16T6

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONOVAN WHITE,

Defendant-Appellant.

______________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LARRY BOSTIC,

Defendant-Appellant.

_______________________________________

Argued October 30, 2017 – Decided

Before Judges Messano, O'Connor, and 

Vernoia.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Indictment No. 

17-05-1216 in A-4778-16.

On appeal from Superior Court of New Jersey, 

Law Division, Cumberland County, Complaint 

No. W-2017-1470-0614 in A-5364-16.

Laura B. Lasota, Assistant Deputy Public 

Defender, argued the cause for appellant 

December 5, 2017

APPROVED FOR PUBLICATION

December 5, 2017

APPELLATE DIVISION
2 A-4778-16T6

Donovan White in A-4778-16 (Joseph E. 

Krakora, Public Defender, attorney; Ms. 

Lasotas and Christiane Cannon, Assistant 

Deputy Public Defender, of counsel and on 

the briefs).

Nathan R. Perry, Assistant Deputy Public 

Defender, argued the cause for appellant 

Larry Bostic in A-5364-16 (Joseph E. 

Krakora, Public Defender, attorney; Mr. 

Perry, of counsel and on the brief).

Frank J. Ducoat, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for respondent in A-4778-16 

(Robert D. Laurino, Acting Essex County 

Prosecutor, attorney; Mr. Ducoat, of counsel 

and on the briefs).

Andre R. Araujo, Assistant Prosecutor, 

argued the cause for respondent in A-5364-16 

(Jennifer Webb-McRae, Cumberland County 

Prosecutor, attorney; Mr. Araujo, of counsel 

and on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

In these appeals, now consolidated in a single opinion, we 

consider for the first time the procedural and substantive 

provisions of the Criminal Justice Reform Act, N.J.S.A. 2A:162-

15 to -26 (the CJRA), that are applicable when a previously

released defendant allegedly violates one or more conditions of 

release imposed by the court. We provide some background.

As to A-4778-16

Defendant Donovan White was arrested on January 28, 2017, 

and charged with second-degree robbery and other offenses. 
3 A-4778-16T6

Defendant's score on the public safety assessment (PSA) for both 

failure to appear (FTA) and new criminal activity (NCA) was 

five, the second-highest possible score in each category, and 

Pretrial Services recommended against his release. The State, 

however, did not move to detain defendant. The judge ordered 

defendant's release with the conditions that he: refrain from 

committing any new offense; avoid contact with the victim; 

report to Pretrial Services every week, alternately in person 

and by phone; remain on home supervision with an electronic 

monitoring device (EMD); avoid the location where the robbery 

occurred; appear for all scheduled court proceedings; and 

immediately notify Pretrial Services of any change of address, 

telephone number, or other contact information. The grand jury 

indicted defendant on May 9, 2017.

On May 25, Pretrial Services filed a violation report, 

indicating that defendant had permitted his EMD to "die" on 

several occasions and to remain dead for several days by failing 

to keep it charged. Apparently, the State moved to revoke 

defendant's release or modify the conditions of release. R.

3:26-2(c).1

On the return date of June 5, 2017, the prosecutor said

that in light of his conversation with defense counsel, the 

 

1 The motion is not in the appellate record.
4 A-4778-16T6

State would not seek detention or modification. The prosecutor

noted that the EMD had "shorted out," and that defendant had 

been "forced out" of his mother's home after an argument, which 

had "led to the bracelet not being charged." Defense counsel 

argued against any change in conditions under these 

circumstances, and the judge agreed. The prosecutor indicated, 

nevertheless, that any further problems would lead to the 

State's filing another motion to revoke defendant's release.

Pretrial Services filed a second violation report on June 

21, 2017. It alleged that: defendant's EMD was "dead" on three 

separate dates after the June 5 hearing; defendant failed to 

report "for instruction" on the proper use of the device after 

the hearing and after acknowledging receipt of a message to 

report; numerous "satellites" detected defendant's presence at 

various hours at three different locations in Hoboken and 

Newark; and defendant failed to update his home address. 

Pretrial Services recommended revocation of defendant's release, 

and the State moved for that relief.

On Friday, July 7, the prosecutor and defense counsel 

appeared before the judge; defendant was not present. There was 

some confusion regarding the date set for the revocation 

hearing, with defense counsel and the prosecutor both indicating 

that the hearing was set for Monday, July 10. Defense counsel 
5 A-4778-16T6

indicated that she had been in touch with defendant, and he

intended to be present on Monday and to produce a witness and 

evidence. Both attorneys agreed to delay the hearing.

However, unbeknownst to counsel or the court, defendant 

reported to Pretrial Services later in the day on July 7, and 

was told to report to court. He did so. Before the judge, 

defense counsel explained that instead of reporting to Pretrial 

Services telephonically as required, defendant had appeared in 

person because of continued problems with his EMD. Over 

defendant's objection, the judge immediately considered the 

State's motion to revoke defendant's release.

Defense counsel sought an adjournment, arguing that 

defendant was not prepared to respond because he had received 

notice that the motion would be heard on July 10. Defendant 

intended to call his mother as a witness to confirm that he was 

residing with her and to address "some of the concerns . . . 

about the [EMD] being defective," but she was not available to 

testify until Monday. Defendant also wanted to present evidence 

from his employer to show that he had been working consistently 

and that his presence at the three locations cited in the 

violation report had been work-related. Counsel stressed that 

in the nearly six months since defendant had been released on 

conditions, he had not been arrested for a new offense, had not 
6 A-4778-16T6

been in contact with the victim, had not been in the area of the 

offense and had not failed to appear for a court date.

The judge agreed that defendant's conduct did not offend 

"two of the primary goals of pretrial release," which were to 

guard against the commission of a new offense and the failure to 

appear in court. However, the judge stated, "the conditions of 

release are not limited to that. There are certain prophylactic 

conditions placed upon the accused to provide . . . reasonable 

assurances that . . . there will be an appearance as required, 

there will be no new offenses, and there will be no obstruction 

of justice."

The judge noted that Pretrial Services had initially 

recommended detention based on defendant's PSA score, and that 

the recommendation established a "prima facie case which would 

satisfy the finding by clear and convincing evidence that there 

is [sic] no conditions or combinations of conditions that will 

reasonably assure the defendant's appearance, the protection of 

the safety of the community."

The judge took note of defendant's prior record; his 

subsequent indictment, which established probable cause that 

defendant committed the crimes charged; and the strength of the 

State's evidence. The judge found that after the June 5 

hearing, defendant continued to allow the EMD to die, thus 
7 A-4778-16T6

inhibiting Pretrial Services from monitoring his location;

failed to report to Pretrial Services on June 14; and was 

present at the three locations noted in the violation. The 

judge stated:

[E]ssential to the proper functioning of the

criminal justice reform is the ability to 

monitor compliance with release conditions. 

Despite having the opportunity earlier in 

response to the first notice of violation, 

[sic] the information before the Court amply 

demonstrates by a preponderance that there 

has been a violation of the home detention 

provision. And this Court is no longer 

comfortable with the continued release of 

[defendant].

And I find by clear and convincing 

evidence through operation of the prima 

facie case provision based upon the 

information set forth in the PSA that there 

are no conditions or combinations of 

conditions that will reasonably assure the 

defendant's appearance, the protection of 

the safety of the community.

The judge entered the July 7, 2017 pretrial detention order from 

which defendant now appeals.

As to A-5364-16

On June 22, 2017, defendant Larry Bostic was charged with 

five counts of endangering the welfare of children and five 

counts of invasion of privacy. The State alleged that defendant 

surreptitiously video recorded female juvenile employees 

disrobing and changing into work uniforms at defendant's 

business. Although defendant's PSA scores were two (FTA) and 
8 A-4778-16T6

one (NCA), and Pretrial Services had recommended his release on 

his own recognizance, the judge ordered defendant detained.

Defendant appealed, and, on July 24, 2017, a panel of our 

colleagues vacated the detention order and remanded the matter, 

concluding that the judge had failed to provide written factual 

findings in support of the order. The remand hearing took place 

on August 2.2

With little discussion, the judge ordered defendant's 

release on "Level 3, monitoring, home detention and a bracelet." 

He advised defendant that except to go to the doctor, shop for 

food or come to court, he could not leave his home. The judge 

ordered defendant to appear at Pretrial Services the next day 

upon his release from jail.3 He also: ordered defendant to have 

no contact with the victims; requested the prosecutor to supply 

the victims' addresses; told defendant that his "bracelet" would 

"set off an alert" if he entered the 1000-feet "zone of 

exclusion" around the victims; and ordered defendant to have no 

contact with anyone under the age of eighteen.

 

2 Although the transcript of the remand hearing indicates it took 

place before a different judge, this is an apparent error. The 

order following remand bears the signature of the same judge who 

issued the detention order, and he referenced our remand order

during the course of the hearing.

3 Even though the charges emanated from Cumberland County, 

defendant was apparently incarcerated in the Camden County jail.
9 A-4778-16T6

The order of release ostensibly detailed these and other 

conditions imposed on defendant. However, the order erroneously 

provided: "Defendant shall come within 1000 feet of any victim 

inclusion zones." Moreover, the addresses of the victims were

not in the order, and the record fails to reveal that those 

locations were ever provided to defendant prior to his release.

As instructed, defendant appeared at Pretrial Services on 

August 3, 2017. He was immediately taken into custody based 

upon a violation report, which indicated that the assistant 

criminal division manager had contacted local police when 

defendant's EMD demonstrated that he had "failed to remain in 

his home," was "roaming the city of Vineland most of the day," 

and had entered a victim exclusion zone for one minute. In the 

violation report, Pretrial Services wrote that defendant was

currently on the highest level of 

supervision. According to the structure 

response grid, entering a victim exclusion 

zone is a major violation as [is] leaving 

your approved home address. There are no 

conditions that can be placed on the 

defendant that will ensure his compliance.

The record before us indicates no arrest warrant was issued, and 

defendant never appeared before a judge until August 9, which 

was the return date for the State's motion to revoke defendant's 

release.
10 A-4778-16T6

A different judge presided over the revocation hearing. 

The prosecutor proffered the violation report from Pretrial 

Services and a Google map, which she claimed demonstrated that 

defendant "was essentially moving all around the city of 

Vineland in violation of his conditions." Defense counsel 

initially tried to explain that defendant did not know "the 

location of the victim exclusion zone." She claimed that 

defendant had gone to the police department a few blocks from 

his home to retrieve his wallet and keys.

Defendant insisted on speaking, so the judge placed him 

under oath. Defendant said that he had tried unsuccessfully to 

retrieve his wallet and keys from the local police department, a 

few blocks from his home. He relied upon an elderly friend to 

drive him from his home in Vineland to Pretrial Services in 

Bridgeton. Defendant said that he had no control over the route 

his friend had taken, and he had no knowledge where any of the 

five alleged victims lived.

The prosecutor's retort was that as the "proprietor of the 

business . . . it's assumed that [defendant was] probably going 

to know where these kids are living." The record fails to 

demonstrate that the prosecutor had complied with the court's 

earlier request to supply those addresses, or that the pretrial 

release order actually served on defendant included the victims' 
11 A-4778-16T6

addresses or described the parameters of the victim exclusion 

zones.

Referencing the violation report, the judge found that 

defendant had been in the exclusion zone where two victims lived 

in the same apartment complex, and that defendant had "failed to 

remain in [his] home as required." He concluded that defendant 

was

obviously . . . not in compliance and . . . 

there's no manner in which we can keep [him] 

in compliance.

At this point the State has overcome 

its burden in establishing that there's no 

amount of monetary bail, non-monetary 

conditions or combinations thereof which 

would ensure that . . . you[ would] appear 

in court[,] . . . not present a danger to 

the community[] and . . . not obstruct 

justice.

The detention order indicated that the judge made these findings 

by clear and convincing evidence. The order also cited the 

"nature and circumstances of the offense," including defendant's 

violation of conditions of pretrial release; the weight of the 

evidence, specifically the violation report and Google map; the 

risk defendant posed to witnesses and the community; and 

Pretrial Services' recommendation of detention.

Defendant filed this appeal.
12 A-4778-16T6

I.

The CJRA "'shall be liberally construed' to effect its 

purpose: to rely primarily 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 criminal justice process.'" State v. Robinson, 229 

N.J. 44, 55 (2017) (quoting N.J.S.A. 2A:162-15). With certain 

exceptions, or unless the prosecutor moves for pretrial 

detention, the CJRA requires the court to release a defendant on 

his personal recognizance or unsecured appearance bond following 

arrest. N.J.S.A. 2A:162-17(a). Only if those conditions are 

inadequate "to assure a defendant's return to court and protect 

both public safety and the integrity of the criminal justice 

process," may the judge impose "non-monetary conditions that are 

the least restrictive conditions necessary." Robinson, supra, 

229 N.J. at 55 (citations omitted).

Compliance "with all conditions of release" is another 

stated purpose of the Act. N.J.S.A. 2A:162-15. These 

conditions may include requiring a defendant to refrain from 

committing another crime, from contacting the alleged victim of 

the crime, from contacting witnesses named in the release order 

or subsequent court order, and other non-monetary conditions. 
13 A-4778-16T6

N.J.S.A. 2A:162-17(b)(1)(a) to (c) and (b)(2); R. 3:26-2(b)(2) 

and (3).

When a defendant is released on conditions,

the court shall, in the document authorizing 

the eligible defendant's release, notify the 

eligible defendant of:

(a) all the conditions, if any, to which the 

release is subject, in a manner sufficiently 

clear and specific to serve as a guide for 

the eligible defendant's conduct; and

(b) the penalties for and other consequences 

of violating a condition of release, which 

may include the immediate issuance of a 

warrant for the eligible defendant's arrest.

[N.J.S.A. 2A:162-23(a)(1)(emphasis added).]

If the court orders a defendant's release subject to conditions, 

it may subsequently review the conditions on its own motion, or 

on motion by either party, and may modify the conditions or 

impose new conditions upon a showing of a material change in 

circumstances. R. 3:26-2(c)(2).

The State may seek revocation of a defendant's release if 

he or she violates a restraining order or a condition of 

release, "or upon [the court's] finding of probable cause . . . 

that the . . . defendant has committed a new crime while on 

release." N.J.S.A. 2A:162-24; accord R. 3:26-2(d)(1). Pending 

disposition of a motion to revoke release, a defendant shall 

remain released and "the court shall issue a notice to appear to 
14 A-4778-16T6

compel the appearance of the eligible defendant at the detention 

hearing." N.J.S.A. 2A:162-19(d)(2).

At the revocation hearing, the defendant shall be 

represented by counsel, provided with all discovery, afforded 

the right to testify and present witnesses, cross-examine 

witnesses who appear and "present information by proffer or 

otherwise." R. 3:26-2(d)(2). The CJRA does not set forth the 

State's burden of proof at the revocation hearing, but Rule

3:26-2(d)(1) provides that the State need only prove the 

violation of a condition of release by a preponderance of the 

evidence. However,

upon a finding that the eligible defendant 

while on release has violated a restraining 

order or condition of release, or upon a 

finding of probable cause to believe that 

the eligible defendant has committed a new 

crime while on release, [the court] may not 

revoke the eligible defendant's release and 

order that the eligible defendant be 

detained pending trial unless the court, 

after considering all relevant circumstances 

including but not limited to the nature and 

seriousness of the violation or criminal act 

committed, finds clear and convincing 

evidence that no monetary bail, non-monetary 

conditions of release 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 other person 

or the community, or that the eligible 

defendant will not obstruct or attempt to 

obstruct the criminal justice process.
15 A-4778-16T6

[N.J.S.A. 2A:162-24 (emphasis added); see 

also R. 3:26-2(d)(1).]

Thus, N.J.S.A. 2A:162-24 conditions revocation of release and 

pretrial detention on a finding by clear and convincing evidence 

that no conditions of release will reasonably assure the three 

goals of the Act. In other words, even after the State proves a 

violation, the court must still consider whether under all 

relevant circumstance, the clear and convincing evidence 

proffered by the State requires detention. The CJRA does not 

allow for detention based solely on a finding that the defendant 

violated the terms of release. 

Although the CJRA and Rule 3:26-2 are silent regarding the 

procedure to be followed at a revocation hearing, we conclude 

that the State's proffer of the Pretrial Services violation 

report alone may be sufficient to establish, by a preponderance 

of the evidence, that a violation occurred. We reach this 

conclusion for several reasons.

In State v. Ingram, 230 N.J. 190, 213 (2017), the Court 

held that at the initial detention hearing under the CJRA, the 

State may establish probable cause by proffer without producing 

a live witness. The probable cause standard, which applies to 

initial detention hearings and revocation hearings based upon 

the commission of a new offense, and the preponderance standard, 

which is applicable to revocations based on violations of 
16 A-4778-16T6

conditions, are similar in nature and precede the ultimate 

finding of whether clear and convincing evidence supports 

detention. Compare State v. Gibson, 218 N.J. 277, 292 (2014) 

(explaining that probable cause is a well-grounded suspicion 

that a crime has been committed), with State v. Williams, 93 

N.J. 39, 78 (1983) (providing: "Preponderance of evidence . . . 

is evidence sufficient to generate a belief that the conclusion 

advanced is likely. It has been stated in terms of reasonable 

probability.") (citations omitted).

Further, the CJRA makes no distinction between a motion to 

detain filed immediately following arrest or at a subsequent 

time. See N.J.S.A. 2A:162-19(a) (explaining that a motion to 

detain may be filed at any time before or after release). 

Indeed, a motion for revocation pursuant to N.J.S.A. 2A:162-24 

is simply a motion to detain with the added requirement that (1) 

the State prove probable cause that the defendant committed a 

new crime, or prove by a preponderance of the evidence that the 

defendant violated a release term or restraining order; and (2) 

the nature and severity of the new crime or the violation, in 

addition to all other circumstances, clearly and convincingly 

establishes that detention is appropriate.
17 A-4778-16T6

Under the federal release revocation statute, which is 

somewhat different from N.J.S.A. 2A:162-24, the court may revoke 

release upon motion by the government if the judge 

(1) finds that there is —

(A) probable cause to believe 

that the person has committed a 

Federal, State, or local crime while on 

release; or

(B) clear and convincing evidence 

that the person has violated any other 

condition of release; and

(2) finds that—

(A) based on the factors set 

forth in [18 U.S.C.A. § 3142(g)], there 

is no condition or combination of 

conditions of release that will assure 

that the person will not flee or pose a 

danger to the safety of any other 

person or the community; or

(B) the person is unlikely to 

abide by any condition or combination 

of conditions of release.[4]

[18 U.S.C.A. § 3148(b).]

Federal courts take a similar approach and allow the government 

to prove a release-term violation by proffer. United States v. 

LaFontaine, 210 F.3d 125, 131 (2nd Cir. 2000); United States v. 

Aron, 904 F.2d 221, 227 (5th Cir. 1990); United State v. Davis, 

 

4 Unlike the federal statute, the CJRA does not authorize 

pretrial detention based upon a finding that the defendant is 

unlikely to abide by any conditions of release.
18 A-4778-16T6

845 F.2d 412, 415 (2nd Cir. 1988). C.f. Ingram, supra, 230 N.J.

at 205 (explaining that because the CJRA is similar to its 

federal counterpart, New Jersey courts should "give careful 

consideration to the federal case law that interprets the Bail 

Reform Act," 18 U.S.C.A. §§ 3141 to 3156).

Lastly, we reject the argument, explicitly made by White 

and implicitly made by Bostic, that the State must prove a 

defendant's violation of a condition of release was purposeful 

or intentional. Nothing in the CJRA or our Court Rules supports 

that claim. However, evidence that the violation is the result 

of inadvertence, negligence or is otherwise excusable is clearly 

a "relevant circumstance[]" in weighing "the nature and 

seriousness of the violation," and ultimately whether the 

evidence clearly and convincingly demonstrates detention is 

warranted in light of all other relevant circumstances. 

N.J.S.A. 2A:162-24.5

 

5 In a somewhat analogous circumstance, our Criminal Code 

explicitly provides that the State must either (1) establish 

probable cause that the defendant committed a new crime while on 

probation, or (2) "inexcusably failed to comply with a 

substantial requirement imposed as a condition" of probation at 

a violation of probation (VOP) hearing. N.J.S.A. 2C:45-3(a)(4)

(emphasis added). If the alleged violation is a failure to pay 

a fine or make restitution, the court must find a willful 

violation. N.J.S.A. 2C:45-3(a)(4). We note further that VOP 

hearings must be on written notice to the defendant, who has the 

right "to hear and controvert the evidence against him, to offer 

evidence in his defense, and to be represented by counsel." 

(continued)
19 A-4778-16T6

We now apply these basic principles to the facts presented 

in these two appeals.

II.

As to defendant White, we first address the judge's 

reliance in part upon the "no release" recommendation made by 

Pretrial Services in the PSA generated when defendant was 

arrested in January. As noted, the State never sought detention 

at that time, but, in reaching his revocation decision, the 

judge considered Pretrial Services' recommendation as prima 

facie evidence sufficient to overcome the presumption of 

release. R. 3:4A(b)(5).

Before us, defendant argues that the prima facie evidence 

provision only applies to the initial detention decision, and 

the State contends that the provision is inapplicable to a 

release revocation hearing because the presumption of release 

only applies at the initial detention hearing. We disagree with 

both parties and conclude that, in the circumstances of this 

case, where the court never made an initial detention decision, 

 

(continued)

N.J.S.A. 2C:45-4. And, the State may rely on a proffer of 

evidence or hearsay to meet its burden. State v. Reyes, 207 

N.J. Super. 126, 138 (App. Div.), certif. denied, 103 N.J. 499 

(1986). We note, however, that the Court recently heard 

argument as to whether the trial court erred in accepting 

hearsay testimony that the defendant committed a new offense at 

the defendant's violation of probation hearing. State v. Noah 

Mosley, Docket No. A-24-16 (argued November 28, 2017). 
20 A-4778-16T6

the judge properly considered Pretrial Services' recommendation

as prima facie proof overcoming the presumption of release.

Initially, Rule 3:4A(b)(5) codifies the CJRA's presumption 

of a defendant's release, except for those crimes to which a 

presumption of detention applies. See N.J.S.A. 2A:162-18(b) 

(presumption of release); N.J.S.A. 2A:162-19(b)(1) and (2) 

(rebuttable presumption of detention for certain crimes). The 

Rule also permits, but does not require, the judge to consider 

the Pretrial services recommendation against release as prima 

facie evidence sufficient to overcome the presumption. R.

3:4A(b)(5); see also See State v. C.W., 449 N.J. Super. 231, 262

(App. Div. 2017) (noting consideration of the recommendation as 

prima facie evidence to rebut the presumption of release is 

discretionary). N.J.S.A. 2A:162-19(a) provides that a motion to 

detain may be filed at any time prior to trial, and the Rule

does not limit its application to motions filed prior to the 

initial hearing.

We find further reason to reject the State's position in 

Article 1, paragraph 11, of our Constitution, the amendment that 

preceded enactment of the CJRA, which provides: "All persons 

shall, before conviction, be eligible for pretrial release." 

Furthermore, N.J.S.A. 2A:162-15 requires that the CJRA "shall be 

liberally construed to effectuate the purpose of primarily 
21 A-4778-16T6

relying upon pretrial release by non-monetary means to 

reasonably assure" its goals.

We specifically do not address a situation where the court 

initially rejects the PSA recommendation of "no release" and 

releases the defendant on conditions.

6 In such situations, the 

CJRA requires the court entering an order "contrary to a 

recommendation made" in the PSA to explain in writing its 

decision to release. N.J.S.A. 2A:162-23(a)(2). We recognize 

that the court's subsequent invocation of Rule 3:4A(b)(5) to 

surmount the presumption of release raises the very real 

possibility of inconsistent decision-making following relitigation of the same or similar issues. See State v. K.P.S., 

221 N.J. 266, 276 (2015) ("The law-of-the-case doctrine 'is a 

non-binding rule intended to prevent relitigation of a 

previously resolved issue' in the same case.") (citing Lombardi 

v. Masso, 207 N.J. 517, 538 (2011)). Here, however, the State 

never sought defendant's detention so the judge never considered 

 

6 We tread carefully because of the Court's pending decision in 

State v. S.N., Docket No. A-60-16 (argued on September 11, 

2017), where the use of Pretrial Services' recommendation of no 

release as prima facie evidence under Rule 3:4A(b)(5) was raised 

during argument before the Court, and State v. Hassan Travis, 

Docket No. A-7-17 (argued on November 29, 2017), where Pretrial 

Services' recommendation in the context of the Rule was squarely 

considered. 
22 A-4778-16T6

the PSA's recommendation of "no release" prior to the revocation 

hearing.

Defendant White argues that the judge "misapplied the law 

on revocation of pretrial release," essentially contending that 

any violations proven during the revocation hearing were 

insufficient to establish by clear and convincing evidence that 

detention was required. He underscores that the violations did 

not include another arrest for a crime, contact with the victim,

or appearance at the location of the crime. Further, he 

appeared at every court proceeding and reported to Pretrial 

Services as required. In short, he claims that there was no 

basis to find he posed a risk to the community or the 

administration of justice, or that he would fail to appear in 

court when required. We choose not to address those arguments 

because reversal is required for other reasons that follow, and 

defendant may renew those and other arguments on the record 

produced at the remand hearing we now order.

As noted, the CJRA requires that a defendant receive proper 

notice of the revocation hearing. N.J.S.A. 2A:162-19(d)(2). 

Here, on July 7, both the prosecutor and defense counsel 

believed the revocation hearing on the State's motion was to 

take place on Monday, July 10. The judge said the "notice of

violation and order" of the court set July 7 as the date. 
23 A-4778-16T6

However, the notice of violation in the record, filed in support 

of the State's motion, does not set the date; the referenced 

court order is also not in the record. Moreover, the State's 

notice of motion, which is in the record, was not served on 

defense counsel until July 6, making it unlikely that the 

hearing was set for the next day.

In short, the record does not reasonably support the 

conclusion that defendant was on notice that the hearing was to 

take place on July 7. This is amply borne out by defense 

counsel's later assertion that defendant mistakenly reported to 

Pretrial Services on July 7 and only appeared in court because 

he was told on that day by Pretrial Services to report to court.

The failure to provide proper notice was particularly 

prejudicial in this case because the judge denied defendant's 

reasonable request to delay the hearing until the following 

Monday. The judge did not provide an explanation for denying 

the adjournment request, although we may surmise that he was 

concerned about defendant's alleged prior violations and the 

second violations report, filed less than one month after the

earlier June 5 court hearing.

However, Rule 3:26-2(d)(2) clearly provides that a 

defendant has the right to call witnesses and present evidence 

at a release revocation hearing. Here, defendant made clear 
24 A-4778-16T6

that he intended to call his mother, who was unavailable on July 

7 but would be available on July 10, to explain the problems he 

continued to have with his EMD and to testify that defendant had 

returned to her home. He also wished to produce evidence that 

his work required him to be at certain locations outside of his 

home, including those detected by satellite. This evidence, if 

believed by the judge, certainly rebutted the State's evidence 

regarding "the nature and seriousness of the violation." 

N.J.S.A. 2A:162-24.

We do not suggest that a judge should surrender his or her 

broad discretion to control the revocation hearing and limit the 

testimony and evidence that is relevant. However, federal 

courts have recognized that the government's sole reliance on a 

proffer at the revocation hearing may affect the probative value 

and weight of the evidence on the ultimate decision of whether 

detention is appropriate. See LaFontaine, supra, 210 F.3d at 

132 (noting that while the government may proceed by proffer, it 

usually does not rely solely on a proffer where its request to 

revoke release is premised upon danger to the community); Aron, 

supra, 904 F.2d at 227 ("The inability of the defendant to 

cross-examine a declarant is relevant to the probative value of 

the proffered evidence . . . ."). It follows that a defendant's 

ability pursuant to Rule 3:26(d)(2) to call witnesses and 
25 A-4778-16T6

produce evidence to rebut the State's revocation proofs has 

increased significance when the only proof of a violation is the 

report of Pretrial Services, as it was in this case.

The denial of the adjournment under these circumstances was 

a mistaken exercise of the judge's discretion.7 See C.W., supra, 

449 N.J. Super. at 255 ("An appellate court can also discern an 

abuse of discretion when the trial court fails to take into 

consideration all relevant factors and when its decision 

reflects a clear error in judgment.") (citing State v. Baynes, 

148 N.J. 434, 444 (1997)). We therefore reverse and vacate the 

detention order, and remand the matter to the trial court to 

conduct a new hearing on the State's motion to revoke White's

release.

Although the CJRA requires a previously released defendant 

to remain so pending the detention hearing, N.J.S.A. 2A:162-

19(d)(2), we do not order defendant's immediate release in this 

case. If the State wishes to proceed on its motion to revoke 

 

7 We reject the State's suggestion, made at oral argument, that 

defendant's challenge to the denial of his adjournment request 

was not properly before us because it was contained in a 

footnote in his brief. See Sullivan v. Port Auth. of N.Y. and 

N.J., 449 N.J. Super. 276, 281 (App. Div. 2017) (explaining that 

arguments raised in a footnote will not be considered on 

appeal). In arguing that the evidence did not clearly and 

convincingly establish that detention was appropriate, defendant 

repeatedly referenced throughout his brief the contrary evidence 

that may have been produced, but was not, because the 

adjournment request was denied.
26 A-4778-16T6

defendant's release, it shall notify the judge and defense 

counsel forthwith, and the judge shall provide notice and 

conduct the revocation hearing within ten days of our judgment, 

or otherwise release defendant subject to appropriate 

conditions. We do not retain jurisdiction.

III.

As to defendant Bostic, we initially express grave concerns 

about the procedures employed prior to the actual revocation 

hearing. Defendant was arrested when he reported to Pretrial 

Services for the first time as ordered. He had not committed 

another crime and there was no outstanding arrest warrant, see

N.J.S.A. 2A:162-23(a)(1)(b) (permitting the "immediate issuance 

of a warrant for the . . . defendant's arrest" for "violating a 

condition of release"), yet defendant was taken into custody 

immediately and not brought before a judge for five days. At 

oral argument before us, the prosecutor could not identify what 

authority permitted the State to proceed in such fashion, and we 

can find none ourselves.

The CJRA requires that a defendant must be provided with 

"all conditions . . . to which the release is subject" "in a 

manner sufficiently clear and specific to serve as a guide for

. . . defendant's conduct." N.J.S.A. 2A:162-23(a)(1)(a). There 

is no evidence that the prosecutor actually supplied the 
27 A-4778-16T6

addresses of the victims, as the judge asked her to do, and the 

actual order, which mistakenly stated, "Defendant shall come 

within 1000 feet of any victim inclusion zones[,]" does not 

provide them. In short, nothing in the record demonstrates that 

Pretrial Services or the State ever supplied defendant with the 

parameters of the victim exclusion zones.

At the revocation hearing, defendant denied any knowledge 

of the victims' addresses. The State only argued that defendant 

must have known the victims' home addresses because they worked 

in his business. Although the judge specifically found that 

defendant had entered the exclusion zone for two of the victims, 

the judge did not find that defendant had actually known where 

or how extensive those zones were. Under these circumstances, 

the State failed to prove by a preponderance of the evidence 

that defendant had violated that condition of his release.

The judge also found that defendant had violated another 

condition of his release by "fail[ing] to remain in [his] home 

as required." In fact, the first judge, on remand, had 

specifically ordered defendant to report to Pretrial Services, 

which was located in a town different from defendant's 

residence, upon his release from jail or the next day if he were 

released late in the day. Defendant complied by reporting the 
28 A-4778-16T6

day after the remand hearing and, in doing so, had to leave his 

home.

The State's proof at the revocation hearing was limited to 

the Pretrial Services' violation report and the Google Map. The 

Google map, which is in the record, does not demonstrate that 

defendant was wandering or "roaming the city of Vineland most of 

the day," contrary to the assertion in the violation report. 

Therefore, the State failed to prove by a preponderance of the 

evidence this second purported violation of a condition of 

release.

On Bostic's appeal, we reverse, vacate the detention order

and order his immediate release on appropriate conditions 

following a hearing, which the Law Division judge shall conduct 

forthwith.

Reversed and remanded in both appeals.