RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2415-16T7

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

C.W.,1

Defendant-Respondent.

_____________________________

Argued March 13, 2017 – Decided

Before Judges Sabatino, Nugent and Haas.

On appeal from Superior Court of New Jersey, 

Law Division, Ocean County, Docket No. W2017-000015-1516.

Samuel J. Marzarella, Chief Appellate 

Attorney, argued the cause for appellant 

(Joseph D. Coronato, Ocean County 

Prosecutor, attorney; Mr. Marzarella, of 

counsel; John C. Tassini, Assistant 

Prosecutor, on the briefs).

Laura B. Lasota, Assistant Deputy Public 

Defender, argued the cause for respondent 

(Joseph E. Krakora, Public Defender, 

attorney; Ms. Lasota, of counsel and on the 

briefs).

 

1 We use initials to protect the identity and privacy of the 

alleged victim, a minor, who resides in close proximity to 

defendant.

March 21, 2017

APPROVED FOR PUBLICATION

March 21, 2017

APPELLATE DIVISION
2 A-2415-16T7

Alexander Shalom argued the cause for amicus 

curiae American Civil Liberties Union of New 

Jersey (American Civil Liberties Union of 

New Jersey, attorneys; Mr. Shalom, Edward L. 

Barocas and Jeanne LoCicero, on the brief).

Claudia Joy Demitro, Deputy Attorney 

General, argued the cause for amicus curiae 

Office of Attorney General (Christopher S. 

Porrino, Attorney General, attorney; Ms.

Demitro, of counsel and on the briefs).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This appeal by the State from a denial of its motion for 

defendant C.W.'s pretrial detention presents several legal 

issues arising under the new Bail Reform Act, N.J.S.A. 2A:162-15 

to -26 ("the Act"), which became effective on January 1, 2017.

The novel issues posed to us include: (1) the proper 

standards of appellate review for assessing a trial court's 

decision to detain or release a defendant under the Act; (2) the 

analytic impact of a defendant's juvenile record, a facet that 

is not numerically reflected in a defendant's risk-assessment 

scores; (3) the significance to the detention analysis of a 

defendant's tier classification under Megan's Law; and (4) 

whether a recommendation by the Judiciary's Pretrial Services 

Program to detain a defendant creates, under the recentlyenacted Rule 3:4A(b)(5), a rebuttable presumption against 

release that such a defendant must overcome.
3 A-2415-16T7

For the reasons amplified in this opinion, we construe the 

Act and the associated provisions within Rule 3:4A as follows. 

First, we adopt the agreed-upon position of the parties and 

the amici that the scope of appellate review of a detention 

decision generally should focus on whether the trial court 

abused its discretion, but de novo review applies with respect 

to alleged errors or misapplications of law within that court's 

analysis.

Second, we conclude that a defendant's prior history of 

juvenile delinquency and probation violations is a permissible –

and at times especially significant – consideration in the 

detention analysis. Such consideration of a defendant's 

juvenile record is authorized by the Act, as it is logically

subsumed within the factors set forth in N.J.S.A. 2A:162-

20(c)(1).

Third, in appropriate cases, a detention analysis under the 

Act should afford considerable weight to the tier classification 

of a defendant who has previously committed a sexual offense 

subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, and whose 

dangerousness and risk of re-offending have been evaluated on a 

Registrant Risk Assessment Scale ("RRAS"). Such a Megan's Law 

tier classification falls within the broad terms of N.J.S.A.

2A:162-20(c)(1). The Megan's Law tiering is particularly 
4 A-2415-16T7

salient where a defendant has been classified in "Tier 3" 

corresponding to the highest risk of re-offense, and where the 

pending charges involve new sexual offenses.

Fourth, we reject the argument that a Pretrial Services 

recommendation to detain a defendant creates, under Rule

3:4A(b)(5), a rebuttable presumption against release that a 

defendant must overcome. However, as the Rule expressly states, 

such a recommendation to detain may be, but is not required to 

be, relied upon by the court as "prima facie evidence" to 

support detention. 

Notably in this regard, the Acting Administrative Director 

of the Courts recently announced in a March 2, 2017 guidance 

memorandum2 that the standard "two-part" format of 

recommendation, which had been used by the Pretrial Services 

Program for the most serious cases (and which was used in this 

case), is being discontinued. That memorandum further clarified 

that the two-part format was not intended by the Judiciary to 

convey a recommendation that equally valued the options of (1) 

detention or (2) release upon stringent conditions. Instead, 

the two-part format was meant to convey that detention was the 

 

2 See Acting Admin. Dir. of the Courts Memorandum, "Criminal 

Justice Reform – Amendment of the Decision Making Framework to 

Clearly Indicate No Release Recommended for the Highest Level of 

Risk Defendant" (March 2, 2017).
5 A-2415-16T7

preferred option, but if the trial court rejected that primary 

recommendation, then stringent conditions of release 

alternatively should be imposed.

Lacking the guidance of the Administrative Director's 

recent clarifying memorandum, as well as subsequent published 

case law on legal issues arising under the new statute3, the 

trial court rejected the State's motion to detain C.W. Instead, 

the court released him on specified conditions, which it made 

more stringent after learning of defendant's close proximity to

the residence of the minor.

The trial court found that the State had not met its burden 

for detention under the Act. The court reached that conclusion 

in spite of defendant's troubling prior record of sexual 

wrongdoing as a juvenile, his two violations of probation that 

caused the Family Part to order him confined for three years in 

a juvenile detention facility, his highest-level Tier 3 

classification under Megan's Law, and his close proximity to the 

minor's residence. 

 

3 See State v. Ingram, ___ N.J. Super. ___ (App. Div. 2017) 

(generally allowing the State to establish probable cause at the 

detention hearing through a written proffer rather than through 

testimony); State v. Robinson, ___ N.J. Super. ___ (App. Div. 

2017) (clarifying the State's discovery obligations in 

connection with the detention proceeding), leave to appeal 

granted, ___ N.J. ___ (2017).
6 A-2415-16T7

The trial court appears to have afforded significance to 

defendant's low numerical risk-assessment scores on the failureto-appear and new criminal activity indices. However, both of 

those scores do not take into account the fact that defendant 

has been confined in a juvenile facility for several years. In 

addition, the trial court's decisions do not explain 

specifically why it rejected the portion of the Pretrial 

Services recommendation of detention, despite the Act's 

requirement for such a written explanation. 

We further note that there are material informational gaps 

in the existing record, such as the details relating to 

defendant's two violations of probation and also his Megan's Law 

classification. These gaps impede a full and appropriate 

consideration of the issues in this case as well as our own 

appellate review.

For these and other reasons explained in this opinion, we 

remand this matter to the trial court for expeditious 

reconsideration of its ruling.

I.

We derive the pertinent facts, in part, from the State's 

allegations, mindful that this case is only in the pretrial 

phase. Fundamentally, the State contends that defendant C.W., 

who is presently twenty years old, attempted on two different 
7 A-2415-16T7

dates in 2016 to engage in sexual activities with a minor 

female. The minor reportedly lives nearby defendant and his 

parents in Ocean County.4

The Charged Offenses and the State's Investigation

According to the State, in May 2016, defendant, who was 

then age nineteen, approached the minor, who was then eleven 

years old.5 He offered to give her a video game system if she 

allowed him to touch her and if she would touch his erect penis. 

The girl declined defendant's proposal. She ran home and 

reported the incident to her brother.

Several months later in November 2016, defendant (who had 

turned twenty over the summer) contacted the minor through a 

social media message. He asked her to send him photographs of 

her wearing a bikini. She did not respond to him.

On November 14, 2016, the minor and her mother reported the 

two incidents to the police. Officers from the Special Victims' 

Unit of the Ocean County Prosecutor's Office interviewed the 

minor on December 1, 2016. The police also took tape-recorded 

 

4 The record supplied to us does not clearly substantiate whether 

the minor lives immediately next door to defendant, but it is 

uncontested that she resides approximately 100 feet from him.

5 The minor reported that defendant had approached her after she 

got off a school bus, whereas defendant stated to the police 

that he had approached her outside of his residence. We need 

not resolve here this discrepancy about the exact location.
8 A-2415-16T7

statements from the minor's mother and brother, both of whom 

provided information consistent with her reported allegations.

Continuing with the investigation, detectives interviewed 

defendant at a local police station on January 19, 2017.6 In a 

video-recorded statement, defendant admitted to the detectives 

that he had asked the minor for bikini photos. He further 

admitted that, on another occasion, after watching pornographic 

videos and obtaining an erection, he opened his front door, saw 

the minor, and asked her to touch his erect penis.

The police arrested defendant after his interview. In a 

complaint-warrant, the State charged him with second-degree 

criminal attempt to sexually assault a child of less than 

thirteen years of age, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:14-

2(b), as well as third-degree endangering the welfare of a child 

by attempting to engage in sexual conduct to impair or debauch 

that child's morals, N.J.S.A. 2C:24-4(a)(1).

The Pretrial Services Risk Assessment and Recommendation

Using defendant's fingerprints, the police carried out the 

Act's new automated pretrial risk-assessment process, pursuant 

to N.J.S.A. 2A:162-25. See N.J. Attorney General Law 

 

6 Defendant does not allege in this interlocutory appeal that his 

admissions were coerced or that the police failed to warn him of 

his right to remain silent in compliance with Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 
9 A-2415-16T7

Enforcement Directive No. 2016-6 ("Directive No. 2016-6"), at 

15-16 (Oct. 11, 2016) (detailing the process). The automated 

process gathers information about defendants from various law 

enforcement and Judiciary databases, including the State Police 

criminal case history system, the PROMIS/GAVEL criminal 

database, the MACS municipal court database, and other sources. 

The information derived from these sources is used to address 

the following nine risk factors:

(1) defendant's age at current arrest;

(2) current violent offense, or current 

violent offense by a defendant twenty years 

old or younger;

(3) pending charge(s) at the time of arrest;

(4) prior misdemeanor7 convictions;

(5) prior felony convictions or any prior 

convictions (misdemeanor or felony);

(6) prior violent convictions;

(7) prior failures to appear in the past two 

years;

(8) prior failures to appear older than two 

years; and

 

7 The risk assessment tool has been developed for the Judiciary 

by a private foundation. Variations of the tool have been used 

in other jurisdictions, some of which, unlike New Jersey, use 

the categorical terms "felony" and "misdemeanor." See Laura & 

John Arnold Foundation, PSA Risk Factors and Formula, 2 (2012) 

http://www.arnoldfoundation.org/wp-content/uploads/PSA-RiskFactors-and-Formula.pdf.
10 A-2415-16T7

(9) prior sentences leading to

incarceration.

Notably, the automated process does not account for a 

defendant's juvenile history. Hence, the numerical scores it 

generates do not reflect adjudications of delinquency for 

serious violent crimes, juvenile violations of probation, or 

failures of a juvenile to appear at proceedings. Directive No. 

2016-6, supra, at 29-30.8

Using an algorithm, the automated process generates a 

Public Safety Assessment ("PSA"), i.e., a risk profile designed 

to inform the trial court of the likelihood, on a scale of one 

to six, that defendant, if released before trial, would engage 

in a New Criminal Activity ("NCA") or Fail to Appear ("FTA") at 

future court events. Id. at 27. The PSA has also been designed 

to include a "flag" if there is a statistical likelihood that 

the defendant would engage in a New Violent Criminal Activity 

("NVCA"). Ibid.

A defendant's NCA and FTA scores are then factored into the 

Judiciary's approved Decision-Making Framework ("DMF"). The DMF 

 

8 The automated process also does not account for: (1) facts 

pertaining to the present offense indicating that a defendant is 

especially dangerous; (2) the strength of the State's case; (3) 

pending charges or convictions from another state; or (4) a 

defendant's involvement with a violent street gang or organized 

crime, drug dependence, or mental illness. See Directive No. 

2016-6, supra, at 28-29.
11 A-2415-16T7

attempts to identify the recommended level and type of 

conditions and intervention or monitoring services needed to 

manage the risks posed by defendant if he were released.

9

At the time of C.W.'s detention hearing, and prior to the 

Acting Administrative Director's March 2, 2017 clarifying 

memorandum, the six possible DMF recommendations were: (1) 

release on own recognizance ("ROR"); (2) release with pretrial 

monitoring level ("PML") 1; (3) PML 2; (4) PML 3; (5) PML 3 + 

EM/HD (Electronic Monitoring/Home Detention); or (6) Release Not 

Recommended. The "Release Not Recommended" category also 

contained the wording, "If Released, PML3 + EM/HD."

10

Here, the one-page Pretrial Services report reflected that 

defendant was twenty years old, and was charged with a violent 

offense. It further indicated that he had no pending charge at 

the time of his arrest; no prior indictable or disorderly 

persons adult convictions; no prior violent adult convictions; 

 

9 Other considerations within the DMF include: (1) the presence 

or absence of an NVCA flag; (2) whether any of the current 

offenses were violent; (3) whether defendant was currently 

charged with escape, murder, sexual assault, robbery, or 

carjacking; and (4) whether the currently charged offenses 

exposed defendant to parole ineligibility under the No Early 

Release Act, N.J.S.A. 2C:43-7.2 ("NERA").

10 According to the March 2, 2017 clarifying memorandum, the DMF 

and resulting Pretrial Services recommendation will now simply 

read "No release recommended" for the highest-risk defendants. 

"Amendment of the Decision Making Framework", supra.
12 A-2415-16T7

no prior failure to appear pretrial; and no prior sentence 

leading to incarceration.

Based on this information, defendant was rated by Pretrial 

Services with a FTA score of one, (i.e., the lowest possible 

risk for failing to appear), and an NCA score of two, (i.e., the 

next lowest possible risk for engaging in new criminal 

activity). Defendant was not "flagged" for new violent criminal 

activity.

Notwithstanding defendant's low FTA and NCA scores, the 

recommendation Pretrial Services presented to the trial court 

was "Release Not Recommended. If Released, Weekly Reporting + 

HD/EM." The document contained no elaboration on how that 

recommendation was generated.11

 

11 Instructional slides created by the developers of the PSA 

tool, which have been supplied to us by amicus American Civil 

Liberties Union ("the ACLU") counsel without objection, indicate 

that the DMF process should determine whether a defendant's 

pending charges involve certain offenses "in which the majority 

of the time a recommendation of preventative detention would be 

appropriate regardless of the risk assessment results." Those 

offenses are escape, murder, aggravated manslaughter, 

manslaughter, aggravated sexual assault, sexual assault, 

robbery, or carjacking. The slides also call for a similar 

recommendation if the PSA resulted in an NVCA flag and one of 

the current offenses is violent. 

Defense counsel and the ACLU argue that these categories, which 

would include defendant because of the charge of attempted 

sexual assault, routinely produce an "automatic" and computergenerated Pretrial Services recommendation for detention. We do 

not have enough information in this record to evaluate whether 

(continued)
13 A-2415-16T7

As the Prosecutor and the Attorney General stress, 

defendant has a significant prior juvenile record that was not 

taken into account numerically in his PSA. Specifically, in

August 2010, he was adjudicated delinquent for acts that if 

committed by an adult would constitute second-degree attempted 

sexual assault and third-degree endangering the welfare of a 

child, acts which he committed in July 2009. Other charges 

were dismissed. He was initially ordered to serve three years 

of probation, and directed to register as a sex offender under 

Megan's Law. The record does not provide any further details 

concerning these prior offenses.

Thereafter, defendant was charged with violating probation 

on two occasions, once in December 2012 and again in February 

2013. The record on this appeal does not disclose the nature of 

those separate violations, which were concurrently adjudicated 

in the Family Part. However, they apparently were sufficiently 

serious to cause the court to sentence him in April 2013 to 

three years of confinement at the New Jersey Training School, an

 

(continued)

that characterization is correct, and neither the Prosecutor nor 

the Deputy Attorney General at oral argument knew if it were 

true. In any event, that particular nuance of the DMF process 

need not be ascertained or evaluated in this opinion, although 

counsel are free to develop the record on the subject on remand 

if they so choose.
14 A-2415-16T7

all-male juvenile detention center in Jamesburg. The exact date 

of his release is not documented in this record.

Defendant's history also reflected that, at some point 

after he was adjudicated delinquent, he underwent an evaluation 

for Megan's Law purposes because of the sexual nature of his 

juvenile offenses. He was classified as a Tier 3 offender, the 

highest tier, corresponding to a "great risk of re-offending," 

as opposed to a low or moderate risk (Tiers 1 and 2). See

Attorney General Guidelines for Law Enforcement for the 

Implementation of Sex Offender Registration and Community 

Notification Laws 17 (Feb. 2007).12 

The State's Motion for Pretrial Detention

After defendant was arrested and charged with the present 

offenses concerning the minor, the State timely moved for his 

pretrial detention under the new law. The pretrial detention 

hearing was held in the Criminal Part on January 25, 2017. 

 

12 Pursuant to N.J.R.E. 201, we take judicial notice that 

defendant, represented by an assistant public defender, appealed 

his tier classification in Docket No. A-4495-15. The appeal was 

opposed by an assistant prosecutor. Neither the assistant 

public defender nor the assistant prosecutor are counsel 

involved in the present pretrial detention appeal. A different 

panel of this court issued an order on December 9, 2016, 

affirming in part the trial court's June 21, 2016 tier 

classification as to certain criteria, but remanding for the 

reconsideration of other criteria. Given the sealed nature of 

that separate classification matter, we do not discuss here its 

substantive content.
15 A-2415-16T7

Defendant appeared at the hearing with counsel, and two 

assistant prosecutors appeared for the State.13 No witnesses 

testified. 

The Prosecutor asserted at the detention hearing that the 

State was seeking the detention of defendant because he had been 

charged with a second-degree offense to which NERA was 

applicable; was believed to be a Tier 3 Megan's Law registrant14

who had violated a condition of his release; and otherwise 

presented a danger to the community. The Prosecutor argued that 

probable cause had been established, referencing the facts 

reported to the police as set forth in a supporting affidavit. 

The Prosecutor further emphasized that, during an interview with 

police, defendant had admitted to soliciting the minor for 

bikini photographs through social media and asking her to touch 

his erect penis.

Defense counsel argued at the hearing that probable cause 

had not been demonstrated. He contended that a proffer by an 

affidavit was not sufficient and that the State had to present 

 

13 For ease of discussion, we refer collectively to the two 

assistant prosecutors as "the Prosecutor."

14 Neither the Prosecutor nor defense counsel brought to the 

trial court's attention at the detention hearing that the Tier 3 

classification had been appealed and remanded.
16 A-2415-16T7

live witnesses.15 He also contended that the State had 

improperly failed to provide the defense with all discovery in 

its possession, including the recorded statements made by the 

minor, witnesses, and defendant.16

The trial court was persuaded that the State should have 

provided the defense with the requested discovery, and stated it 

was willing to grant an adjournment to allow for that turnover. 

However, defense counsel declined an adjournment, as he did not 

want to delay matters and have defendant remain in jail for that 

reason. Accordingly, the court ruled that probable cause had 

been preliminarily established for purposes of the detention 

hearing, but indicated it would consider defendant's assertions 

of alleged deficiencies in the State's presentation in its final 

decision.

Following the court's probable cause ruling, the Prosecutor 

announced that the State was relying on defendant's PSA and 

criminal case history in support of its motion for detention. 

 

15 This categorical legal argument was subsequently rejected in 

Ingram, supra, ___ N.J. Super. ___ (slip op. at 34). 

16 The following month in Robinson, supra, ___ N.J. Super. ___ 

(slip op. at 27), we clarified the State's discovery obligations 

in relation to the detention hearing. The Supreme Court has 

granted the State's motion for leave to appeal in Robinson, and 

the case is awaiting argument before the Court.
17 A-2415-16T7

She urged that defendant should not be released under any 

circumstances.

Although the Prosecutor recognized that defendant had low 

scores on the PSA, she asserted "this [was] one of the occasions 

where the PSA simply [did] not account for the defendant's 

[offense] history and/or the serious nature of the crime." She 

noted that while defendant has not had the opportunity to amass 

an adult criminal record, he does have a significant juvenile 

record. In fact, she asserted he committed as a youth sexual 

wrongdoing allegedly similar to the current charges. She also 

emphasized defendant's probationary sentence, his previous 

designation as a Tier 3 Megan's Law offender, his subsequent 

violations of probation, and his ultimate commitment to three 

years in juvenile detention. Based upon his history, the 

Prosecutor maintained that there was a high risk that defendant 

would not comply with release conditions and would, once again, 

re-offend.

Defense counsel responded that the PSA, on which defendant 

had received very low scores, was a reliable "sanitized 

assessment" of his actual history. Counsel acknowledged, as an 

aside and without any further comment, that defendant did have 

"one juvenile conviction [sic]" that was not accounted for by 

the PSA scores.
18 A-2415-16T7

Defense counsel further argued that his client not only 

must be presumed innocent, but also should be given the 

opportunity under the new Act to show the court that he could 

comply with release conditions while his charges were pending. 

Counsel maintained that defendant was not a flight risk because 

he had been residing with his parents "for many years now" in 

Ocean County, had a girlfriend who was three months pregnant, 

and was about to start a job at a local restaurant.

With respect to conditions of release, defense counsel 

asserted that defendant was willing to stay away from the minor, 

her residence, and school, and also would remain in contact with 

counsel and Pretrial Services. He represented that defendant 

was presently on medication, receiving counseling, and being 

monitored by his parole officer. 

The Trial Court's Rulings

After considering these arguments and the written 

materials, the trial court issued an oral ruling at the end of 

the hearing, denying the State's motion for detention and 

instead releasing defendant on several conditions. 

Among other things, the court observed in its oral decision 

that defendant has "roots in the community," "prospects of 

employment," and "ties . . . to [the] area." The court further

noted that defendant had "no failure to appear in the past two 
19 A-2415-16T7

years," and "no prior sentence" for an adult crime. The court 

also recognized that defendant is "presumed innocent until 

proven guilty," and that he had not been charged with murder or 

another offense that would make him presumptively inappropriate 

for release under the new statutory scheme.

The trial court did briefly acknowledge that defendant had 

a prior juvenile delinquency adjudication for second-degree 

sexual assault, had been classified under a Tier 3 pursuant to 

Megan's Law, and had apparently "re-offended quickly after he 

was released." Nevertheless, the court concluded that the State 

had not met its burden by clear and convincing evidence under 

the statute to show that no combination of conditions could 

reasonably assure defendant's appearance in court and the 

protection and safety of the community before trial.

The court denied the State's immediate motion for a stay 

for purposes of an emergent appeal. The court then agreed, 

without defense objection, to impose all of the conditions the 

Prosecutor had requested if release were granted. These 

conditions required defendant to: (1) avoid all contact with 

the minor and her family; (2) appear for all scheduled court 

proceedings; (3) immediately notify Pretrial Services of any 

change of address, telephone number, or other contact 

information; (4) avoid the commission of any new offenses; (5) 
20 A-2415-16T7

report to Pretrial Services telephonically once every other 

week, and in person once every other week; (6) remain on home 

detention, with electronic monitoring; and (7) comply with his 

Megan's Law obligations.

Defendant agreed to abide by these conditions, but inquired 

if he was still allowed to go to work. Without waiving its 

right to pursue the present appeal, the Prosecutor did not 

object to defendant working, provided that he adhere to a strict 

schedule and return home after work immediately. It was also 

agreed that defendant had to stay at least 500 feet away from 

the minor's home.

After dismissing the parties, the court reconvened the 

proceeding later that same day, upon learning that the minor 

actually lived within 100 feet of defendant's home, and also 

that defendant would likely come into contact with minors if he 

were to work at the local restaurant. Given this additional 

information, the court modified its original ruling. It 

determined that, because defendant and the child apparently were 

neighbors, he would have to remain inside his home at all times,

except to go to work or to appointments with the advance

permission of Pretrial Services. The court further directed 

that defendant would have to find employment at a different 
21 A-2415-16T7

location where he would not be likely to come into contact with 

minors.

 The court issued an order implementing those terms that 

same afternoon. The order did not elaborate further on the 

court's reasons, but instead cross-referenced the bench ruling. 

Hours later, the State filed an application with this court for 

permission to file an emergent motion for leave to appeal. We 

denied the emergent motion, without prejudice to the State's 

right to file a motion for relief in the regular course. The 

Supreme Court likewise denied emergent relief.

The State promptly moved for leave to appeal on January 31,

2017. The same day, we issued a sua sponte interim order,

directing the trial court to furnish, as mandated by N.J.S.A.

2A:162-23(a)(2), a written statement of reasons for denying 

detention contrary to the Pretrial Services recommendation.

The trial court submitted the written statement of reasons 

on February 2, 2017. In that amplification, the trial court 

first noted the parties' discovery dispute and the alleged 

deficiencies in the State's probable cause presentation. It 

then summarized the parties' arguments in support of and against 

pretrial detention. The court repeated its conclusion that,

after considering all of the arguments and proofs, the State had 

not established its burden to justify detention by clear and 
22 A-2415-16T7

convincing evidence. The statement of reasons did not refer to 

the Pretrial Services recommendation, but it did again reference 

defendant's low PSA scores. 

We then granted the State's motion for leave to appeal. 

Meanwhile, at our invitation, the Attorney General and the ACLU 

each moved for and were granted leave to appear as amicus 

curiae.

On appeal, the Prosecutor and the Attorney General urge 

that we reverse the trial court's denial of the State's 

detention motion. They argue that the trial court abused its 

discretion by overlooking or under-valuing important aspects of 

this case, including, among other things, defendant's juvenile 

history as a sex offender, his violations of probation, his tier 

classification under Megan's Law, his very close proximity to 

the minor's residence, and the Pretrial Services recommendation 

to detain.

Defendant and amicus ACLU argue that the trial court's 

decision was reasonable, supported by the record, and consistent 

with the terms and objectives of the new law, and should not be 

disturbed.

II.

Before delving into the legal issues raised by this appeal, 

we begin with a brief overview of the key elements of the Act 
23 A-2415-16T7

and the associated Rule 3:4A, the latter which was approved in 

August 2016 and became effective with the new statute on January 

1, 2017.

The Act signals a momentous change in our State's criminal 

justice system. As our colleagues extensively detailed in 

Robinson, supra, ___ N.J. Super. ___ (slip op. at 8-10), the Act 

is the result of a constitutional mandate by New Jersey voters 

to replace the former bail-dependent system with a system 

providing defendants with "a right to pretrial release, but 

authorizing pretrial detention under certain limited 

circumstances." See N.J. Const. art. I, ¶ 11. The Act also 

imposes certain speedy trial requirements. See N.J.S.A. 2A:162-

22. 

"As codified by the Bail Reform Act, the new system favors 

pretrial release and monitoring as the presumptive approach and 

limits preventive detention to defendants who actually warrant 

it." Robinson, supra, ___ N.J. Super. ___ (slip op. at 8). "By 

permitting judges to keep high-risk defendants detained without 

bail, and to release with or without conditions those defendants 

who pose little risk of flight or of committing another offense, 

these constitutional and legislative changes represent a major 

reform to criminal justice that will promote public safety and 

fairness." Ibid. 
24 A-2415-16T7

Nonetheless, the trial court remains authorized, upon 

motion of a prosecutor, to order pretrial detention of a 

particular defendant when it finds by "clear and convincing 

evidence, that no condition or combination of conditions can 

reasonably assure the effectuation of these goals." N.J.S.A.

2A:162-15; accord N.J.S.A. 2A:162-18(a)(1); N.J.S.A. 2A:162-

19(e)(3).

The State may file an application for pretrial detention 

when a defendant is charged with, among other things: (1) any 

crime of the first or second degree enumerated under NERA17; or 

(2) any crime enumerated under N.J.S.A. 2C:7-2(b)(2) (Megan's 

Law) or the crime of endangering the welfare of a child under 

N.J.S.A. 2C:24-4. See N.J.S.A. 2A:162-19(a)(1) and (4). Under 

this same statutory section, the State may also move for 

pretrial detention when a defendant is charged with any other 

crime for which the prosecutor believes there is a serious risk 

that the goals set forth in N.J.S.A. 2A:162-15 cannot be met. 

N.J.S.A. 2A:162-19(a)(7).

At the detention hearing required by N.J.S.A. 2A:162-19(c), 

if the defendant has not yet been indicted, "the prosecutor 

shall [first] establish probable cause that the eligible 

 

17 It is undisputed that defendant, who is charged with a seconddegree offense, meets this predicate requirement.
25 A-2415-16T7

defendant committed the predicate offense." N.J.S.A. 2A:162-

19(e)(2). Probable cause consists of a "well grounded" 

suspicion that an offense has been committed. State v. 

Sullivan, 169 N.J. 204, 211 (2001). See also Ingram, supra, ___ 

N.J. Super. ____ (slip op. at 8-9).

Except for when an eligible defendant is charged with a 

crime set forth in N.J.S.A. 2A:162-19(b), i.e., murder or any 

crime for which the defendant would be subject to an ordinary or 

extended term of life imprisonment, the statute imposes a 

rebuttable presumption against detention. N.J.S.A. 2A:162-

18(b).18 Hence, in order to prevail on a detention motion in 

other offense categories, the State must rebut the presumption 

that some amount of monetary bail, non-monetary conditions, or a 

combination thereof would reasonably assure (1) the defendant's 

appearance in court when required, (2) the protection of the 

safety of any other person or the community, and (3) that the 

defendant will not obstruct or attempt to obstruct the criminal 

justice process. N.J.S.A. 2A:162-18(b).

 

18 In these other instances, there is a rebuttable presumption 

that the eligible defendant "shall be detained." N.J.S.A.

2A:162-19(b) (emphasis added). The defendant can rebut this 

presumption by the lesser proof standard of preponderance of the 

evidence. N.J.S.A. 2A:162-19(e)(2). Under this same statutory 

provision, if the defendant successfully rebuts the presumption, 

the prosecutor can still establish grounds for detention by 

clear and convincing evidence. Ibid.
26 A-2415-16T7

The Act further prescribes that the court at a detention 

hearing "may take into account" the following information:

a. The nature and circumstances of the 

offense charged;

b. The weight of the evidence against the 

[presumptively] 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 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 obtained using a 
27 A-2415-16T7

risk assessment instrument under N.J.S.A.

2A:162-25.

[N.J.S.A. 2A:162-20.]

Notably, although Section 20 of the Act does not place any 

special emphasis on the PSA, another provision within the Act, 

N.J.S.A. 2A:162-16(b)(1), expressly mandates the court "shall

consider the [Pretrial Services] risk assessment and 

recommendations on conditions of release before making any 

pretrial release decision[.]" (Emphasis added).

We agree with the State that this quoted language within 

Section 16 signifies that a trial court may not ignore the 

Pretrial Services recommendation in its detention analysis, 

although it is not bound to follow it. That interpretation is 

consistent with Section 23(a)'s requirement that, if the court 

issues an order contrary to the recommendations of Pretrial 

Services, the judge "shall provide an explanation in the 

document that authorizes the eligible defendant's release." 

N.J.S.A. 2A:162-23(a)(2) (emphasis added). As we discuss, 

infra, that did not occur here, perhaps due to perceived 

ambiguities in the two-part format of the recommendation.

New Rule 3:4A(b)(5), which implements these statutory 

facets, instructs that the court:

may consider as prima facie evidence 

sufficient to overcome the presumption of 

release a recommendation by [Pretrial 
28 A-2415-16T7

Services] established pursuant to N.J.S.A.

2A:162-25 that the defendant's release is 

not recommended (i.e., a determination that 

"release not recommended or if released, 

maximum conditions"). Although such 

recommendation by [Pretrial Services] may 

constitute sufficient evidence upon which 

the court may order pretrial detention, 

nothing herein shall preclude the court from 

considering other relevant information [in 

reaching its detention determination].

[(Emphasis added).]

"After considering all the circumstances, the [Pretrial 

Services] risk assessment and recommendations on conditions of 

release, and any information that may be provided by a 

prosecutor or the eligible defendant, the court shall order that 

the eligible defendant" be either detained or released. 

N.J.S.A. 2A:162-16(b)(2). A defendant may be released on: (1) 

his or her own recognizance; (2) execution of an unsecured 

appearance bond; (3) non-monetary conditions; (4) monetary bail; 

or (5) a combination of conditions and monetary bail. N.J.S.A.

2A:162-16(b)(2); N.J.S.A. 2A:162-17. Monetary bail can only be 

used to reasonably assure the eligible defendant's appearance. 

N.J.S.A. 2A:162-17(c)(1).19

 

19 The court-ordered non-monetary conditions, paraphrased, may 

require the defendant to: (1) refrain from committing any 

offense during the period of release; (2) avoid all contact with 

an alleged victim of the crime; (3) avoid all contact with all 

witnesses who may testify concerning the offense; (4) remain in 

the custody of a designated person, who agrees to assume 

(continued)
29 A-2415-16T7

With this backdrop in mind, we turn to the discrete issues 

presented.

A.

Our first task is to ascertain the appropriate scope of 

appellate review of a trial court's order granting or denying 

pretrial detention. The Act does not specify a scope of review. 

Nor have our two published cases resolved it while examining 

other important legal issues under the new law. But see Ingram, 

supra, ___ N.J. Super. ___ (slip op. at 37-38) (noting that the 

Attorney General had posited an abuse-of-discretion review 

 

(continued)

supervision and to report any violation of a release condition 

to the court; (5) maintain employment, or, if unemployed, 

actively seek employment; (6) maintain or begin an educational 

program; (7) abide by specified restrictions on personal 

associations, place of residence, or travel; (8) report on a 

regular basis to a designated law enforcement agency, or other 

agency, or pretrial services program; (9) comply with a 

specified curfew; (10) refrain from possessing a firearm, 

destructive device, or other dangerous weapon; (11) refrain from 

excessive use of alcohol, or any use of a narcotic drug or other 

controlled substance without a prescription by a licensed 

medical practitioner; (12) undergo all available medical, 

psychological, or psychiatric treatment, including treatment for 

drug or alcohol dependency, and remain in a specified 

institution if required for that purpose; (13) return to custody 

for specified hours following release for employment, schooling, 

or other limited purposes; (14) be placed in a pretrial home 

supervision capacity with or without the use of an approved 

electronic monitoring device; or (15) satisfy any other 

condition deemed necessary to reasonably assure the effectuation 

of the goals of the Act. N.J.S.A. 2A:162-17(b)(1) and (2).
30 A-2415-16T7

standard, and that the Public Defender had indicated at oral 

argument that such a standard "most likely" applied).

Our task has been eased because the parties and the amici 

essentially agree that the appropriate general standard of 

appellate review is to sustain the trial court's decision unless 

it represents an abuse of discretion. However, as the parties 

also agree, de novo review must be conducted if the trial court 

erred in its application of the law, such as by relying on a 

legally impermissible reason, by failing to consider a legally 

required factor in the detention calculus, or by failing to 

provide adequate reasons for its decision.

Even though we accept counsel's agreement that these are 

the appropriate review standards for appeals arising under the 

Act, we provide the following discussion for sake of 

completeness. We begin with a recognition that the statute 

explicitly confers upon defendants a right to appeal an order of 

pretrial detention "pursuant to the Rules of Court." N.J.S.A.

2A:162-18(c).20 The appeal "shall be heard in an expedited 

manner." Ibid. In addition, the defendant who was denied 

release by the trial court "shall be detained pending the 

disposition of the appeal." Ibid. 

 

20 See R. 2:9-13 (eff. Jan. 1, 2017) (delineating new rules of 

appellate practice specifically to guide detention appeals). 
31 A-2415-16T7

Although the State has no reciprocal statutory right to 

appeal decisions granting a defendant's pretrial release, it can 

pursue interlocutory review in this court's discretion. The 

State may do so through a motion for leave to appeal filed in 

accordance with the general requirements of Rules 2:2-3 and 2:5-

6. Indeed, that is the jurisdictional path that led to the 

present case being heard by this court, having granted leave to 

appeal.

None of the parties or amici support adopting the standards

of review that case law from the circuit courts has deemed 

applicable under the federal Bail Reform Act, 18 U.S.C.A. §§ 

3141 to 3156 (1984), on which the Act was largely based. Like 

our own law, the federal statute does not identify the 

applicable standard of review. United States v. Perry, 788 F.2d 

100, 104 (3d Cir.), cert. denied, 479 U.S. 864, 107 S. Ct. 218, 

93 L. Ed. 2d 146 (1986). The circuit courts have been split in 

resolving that question. 

Three circuit courts have adopted a "clearly erroneous" 

standard, i.e., a highly deferential standard much like a 

traditional abuse of discretion standard, whereby the detention 

order will be sustained if it is supported by the evidence 

presented at the hearing. See, e.g., United States v. English, 

629 F.3d 311, 319 (2d Cir. 2011); United States v. Rueben, 974 
32 A-2415-16T7

F.2d 580, 586 (5th Cir. 1992), cert. denied, 507 U.S. 940, 113 

S. Ct. 1336, 122 L. Ed. 2d 720 (1993); United States v. Fortna, 

769 F.2d 243, 250 (5th Cir. 1985); United States v. Chimurenga, 

760 F.2d 400, 405-06 (2d Cir. 1985); United States v. Williams, 

753 F.2d 329, 333 (4th Cir. 1985).

A majority of the circuit courts, however, independently 

review detention decisions affording more limited deference to 

the district court's ruling. United States v. O’Brien, 895 F.2d 

810, 813 (1st Cir. 1990). Under this more stringent standard, 

"[i]f upon careful review of all the facts and the trial judge's 

reasons the appeals court concludes that a different result 

should have been reached, the detention decision may be amended 

or reversed." Id. at 814.

Meanwhile, six circuit courts adhering to the "independent"

standard of review specify that factual findings will only be 

reversed if they are clearly erroneous. United States v. 

Cisneros, 328 F.3d 610, 613 (10th Cir. 2003); United States v. 

Portes, 786 F.2d 758, 762 (7th Cir. 1985); United States v. 

Hurtado, 779 F.2d 1467, 1470-72 (11th Cir. 1985); United States 

v. Maull, 773 F.2d 1479, 1487 (8th Cir. 1985); United State v. 

Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985); United States v. 

Hazime, 762 F.2d 34, 37 (6th Cir. 1985). 
33 A-2415-16T7

Two other circuits generally hold that the district court's 

determination should simply be given deference. United States 

v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003); O'Brien, 

supra, 895 F.2d at 814; United States v. Delker, 757 F.2d 1390, 

1399-1400 (3d Cir. 1985). However, as explained in O’Brien, 

supra, 895 F.2d at 813, as a practical matter, this general 

deference "to the determination of the trial court in the 

context of an independent review typically will mean giving the 

greatest deference to purely factual determinations."

The parties and amici in this case eschew these varying 

federal approaches. They instead urge that we apply traditional 

standards of review that have been used in appeals of bail 

decisions in our State.

Historically, the purpose of bail was not to protect the 

community from a defendant's future criminal or antisocial 

conduct or to inflict punishment, but instead merely to ensure 

the defendant's appearance at court proceedings. State v. 

Korecky, 169 N.J. 364, 376 (2001); State v. Steele, 430 N.J. 

Super. 24, 35-37 (App. Div. 2013), certif. improvidently 

granted, 223 N.J. 284 (2014). The setting of bail has been

entrusted to the reasonable and sound discretion of the trial 

court, and our appellate courts have generally sustained those 

rulings in the absence of a proven abuse of discretion. See, 
34 A-2415-16T7

e.g., State v. Fajardo-Santos, 199 N.J. 520, 533-34 (2009); 

Korecky, supra, 169 N.J. at 373; Steele, supra, 430 N.J. Super.

at 34-35. The trial court's discretionary decision to impose 

non-monetary conditions of release upon a defendant to protect 

the public also has been customarily reviewed for an abuse of 

that discretion. See, e.g., State v. Johnson, 61 N.J. 351, 364 

(1972); Steele, supra, 430 N.J. Super. at 34.

While the concept is difficult to define with precision, an 

appellate court "may find an abuse of discretion when a decision 

'rest[s] on an impermissible basis' or was 'based upon a 

consideration of irrelevant or inappropriate factors.'" Steele, 

supra, 430 N.J. Super. at 34-35 (quoting Flagg v. Essex Cty. 

Prosecutor, 171 N.J. 561, 571 (2002)). 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. State v. Baynes, 

148 N.J. 434, 444 (1997). Likewise, when the trial court 

renders a decision based upon a misconception of the law, that 

decision is not entitled to any particular deference and 

consequently will be reviewed de novo. See, e.g., State v. 

Stein, 225 N.J. 582, 593 (2016); State v. Williams, 441 N.J. 

Super. 266, 272 (App. Div. 2015).
35 A-2415-16T7

A reviewing court generally will give no deference to a 

trial court decision that fails to "provide factual 

underpinnings and legal bases supporting [its] exercise of 

judicial discretion." Clark v. Clark, 429 N.J. Super. 61, 72 

(App. Div. 2012). If a trial court has merely catalogued the 

evidence and issued an order without sufficiently explaining its 

reasoning, such a conclusory approach does not serve the parties 

and does not facilitate appellate review. It is vital that the 

trial court make the necessary findings and explain its reasons. 

See generally, R. 1:7-4; see also Barr v. Barr, 418 N.J. Super.

18, 46 (App. Div. 2011); Barnett & Herenchak, Inc. v. State, 276 

N.J. Super. 465, 472 (App. Div. 1994); In re Valley Hosp., 240 

N.J. Super. 301, 306 (App. Div. 1990), certif. denied, 126 N.J.

318 (1991).

We concur with counsel that these well-established general 

principles of appellate review are sensibly applied in the 

context of pretrial detention rulings issued under the Act. The 

statutory scheme envisions that judges in the Criminal Part 

repeatedly will be called upon to make detention decisions in a 

wide array of cases. Over time, those trial judges will 

naturally develop considerable expertise in applying the terms 

of the Act. As the First Circuit observed in O'Brien, supra, 

895 F.2d at 813, "it would unduly intrude on the ability of 
36 A-2415-16T7

[trial] courts to render these [pretrial detention] decisions on 

a day to day basis if they were subjected to cavalier treatment 

by an appellate court with little experience or opportunity to 

develop expertise."

The wording of the Act itself lends support to the adoption 

of an abuse of discretion review standard. Section 18 states 

that the court "may" order release if the State has met its 

burden. N.J.S.A. 2A:162-18(a). Furthermore, Section 20 

outlines the factors that the trial court "may" consider in 

ruling on detention motions. N.J.S.A. 2A:162-20. "The use of 

the word 'may' generally conveys that an action is permissive, 

not mandatory." Myers v. Ocean City Zoning Bd., 439 N.J. Super.

96, 101 (App. Div. 2015) (citing Harvey v. Bd. of Chosen 

Freeholders of Essex Cty., 30 N.J. 381, 391 (1959) (stating 

that, absent legislative intent to the contrary, use of "may" 

indicates that a provision is permissive, and use of "shall" or 

"must" reflects that a provision is mandatory)).

From a policy perspective, the objectives of the new Act in 

attaining the expeditious resolution of criminal cases could be 

thwarted if this court routinely second-guessed decisions on 

pretrial detention motions simply because we personally would 

have reached a different result than the trial judge. We surely 

do not wish to encourage dissatisfied parties to file appeals 
37 A-2415-16T7

having little or no merit on such collateral issues, while the 

trial court proceedings are possibly stalled in the meantime and 

the parties' resources are diverted to appellate briefing. 

Excessive appeals are also bound to interfere with the Act's 

speedy trial goals.

That said, we also must remain vigilant that detention 

rulings are not simply rubber-stamped, and that the procedural 

and substantive requirements of the Act and other legal 

principles are honored. In many instances, the pretrial hearing 

may entail no witness testimony and no need for credibility 

findings by the trial court, to which we ordinarily accord great 

deference. State v. Locurto, 157 N.J. 463, 471 (1999). Hence, 

we often will be looking at precisely the same paper record 

concerning a defendant's risks as the trial court. Even so, our 

primary role in appellate correction should be one of assuring 

that the law is being followed properly in the trial court. The 

traditional standards of review used by our courts in bail cases 

will serve that goal.

When conducting appellate review under this largely 

deferential standard, we also must bear in mind the evidentiary 

standard under the Act that governs the detention ruling. 

Where, as here, the charged offenses do not trigger a 

presumption of detention pursuant to N.J.S.A. 2A:162-19(b) — as 
38 A-2415-16T7

it would in murder and life imprisonment cases — the State must 

meet a heavy burden to establish the need for detention by 

"clear and convincing evidence." N.J.S.A. 2A:162-18(a)(1). The 

drafters of the Act presumably chose that high bar to make 

detention the appropriate result for only a limited group of the 

most serious cases, where public safety is demonstrably 

threatened by a defendant's release, the defendant clearly is

not likely to appear for court, or he or she is likely to 

threaten to obstruct the criminal justice process.

The State's burden of establishing clear and convincing 

evidence in this context falls somewhere between the ordinary 

civil standard of preponderance of the evidence and the criminal 

standard of beyond a reasonable doubt. In re Perskie, 207 N.J.

275, 289 (2011). This heightened standard is typically applied 

where the evidentiary matters are complex, prone to abuse, error 

or injustice, and also where an individual’s interests in 

liberty or personal welfare are at stake. Liberty Mut. Ins. Co. 

v. Land, 186 N.J. 163, 170 (2006); State v. Michaels, 136 N.J.

299, 321-23 (1994). The standard is also frequently imposed 

where, by operation of common or statutory law, a strong 

presumption favors a contrary result. See Auge v. N.J. Dept. of 

Corr., 327 N.J. Super. 256, 263 (App. Div.), certif. denied, 164 

N.J. 559 (2000).
39 A-2415-16T7

Clear and convincing evidence should produce in the mind of 

the decision-maker "a firm belief or conviction as to the truth 

of the allegations sought to be established." State v. 

Hernandez, 170 N.J. 106, 127 (2001) (quoting In re Samay, 166 

N.J. 25, 30 (2001)); State v. Hodge, 95 N.J. 369, 376 (1984). 

The evidence must be "so clear, direct and weighty and 

convincing as to enable either a judge or jury to come to a 

clear conviction, without hesitancy, of the precise facts in 

issue." In re Seaman, 133 N.J. 67, 74 (1993) (quoting Aiello v. 

Knoll Gold Club, 64 N.J. Super. 156, 162 (App. Div. 1960)); 

accord Hernandez, supra, 170 N.J. at 127. To meet this test, 

the truth of an allegation must be "highly probable." Perskie, 

supra, 207 N.J. at 290.

Consequently, in exercising our role of appellate 

oversight, we are obligated to bear in mind the challenging 

burden under the Act that the State must meet in most cases to 

support its detention motion. If the points in favor of the 

detention motion do not heavily weigh in favor of the State in 

such instances, the trial court should deny the application, and 

we should be loath to disturb that denial on appeal. 

Conversely, if the State manifestly has made such a showing, we 

must carefully consider whether the trial court has abused its 
40 A-2415-16T7

discretion or misapplied the law in rejecting the application 

and, if so, set aside the determination. 

B.

We next consider the legal significance of a defendant's 

prior juvenile record in making a detention decision under the 

Act. This likewise is an issue on which counsel fundamentally 

agree.

As we have noted, the Pretrial Services matrix for the NCA 

and FTA scores does not statistically incorporate a defendant's 

prior juvenile record. Nevertheless, Section 20 of the Act 

broadly authorizes the trial court to consider a defendant's 

"past conduct" as one of the many permissible factors in 

evaluating his or her suitability for pretrial release. 

N.J.S.A. 2A:162-20(c)(1).

A defendant's prior adjudications of delinquency and the 

nature of his or her juvenile offenses are logically part of his 

or her "history and characteristics" and indicative of the 

danger he or she poses to the community under N.J.S.A. 2A:162-

20(c) and (d). Notably, juvenile history is taken into account 

in federal detention determinations, where the court is 

directed, under 18 U.S.C.A. § 3142(g), to consider the same 

types of information set forth in N.J.S.A. 2A:162-20. See, 
41 A-2415-16T7

e.g., United States v. Begay, 315 Fed. Appx. 53, 54-56 (10th

Cir. 2009).

We appreciate that the objectives of the juvenile justice 

system generally differ from those for the adult criminal 

justice process. See, e.g., In re Registrant J.G., 169 N.J.

304, 325 (2001) (emphasizing the Juvenile Code's preference for 

"supervision, care and rehabilitation" as alternatives, instead 

of incarceration for juveniles adjudicated delinquent); State ex 

rel. S.S., 367 N.J. Super. 400, 407 (App. Div. 2004), aff'd 183 

N.J. 20 (2005) ("Even with respect to a juvenile charged with 

conduct that would be a crime if committed by an adult, the 

overriding goal of the juvenile justice system is 

rehabilitation, not punishment."). 

Nevertheless, an adult defendant's prior juvenile record 

may properly be considered in making sentencing determinations, 

particularly if the juvenile adjudications are relatively 

recent, voluminous, or severe. See, e.g., State v. Torres, 313 

N.J. Super. 129, 162 (App. Div.) (instructing that a sentencing 

court may consider defendant's juvenile record, even if the 

charges did not result in adjudications), certif. denied, 156 

N.J. 425 (1998); State v. Phillips, 176 N.J. Super. 495, 502 

(App. Div. 1980) (holding that a sentencing judge may consider 

juvenile offenses "so long as they are not given the weight of a 
42 A-2415-16T7

criminal conviction") (citing State v. Marzlof, 79 N.J. 167, 

176-77 (1979)).

Simply stated, a defendant's juvenile offenses may count in 

the detention calculus, but should not be weighed as heavily as 

prior adult convictions. None of the parties before us dispute 

this principle.

C.

We next consider the relevance of a defendant's prior tier 

classification as a sex offender under Megan's Law. As part of 

the Megan's Law assessment for such potential registrants, the 

State is obligated to demonstrate the propriety of defendant's 

tier classification by clear and convincing evidence. In re 

Registrant M.F., 169 N.J. 45, 54 (2001). 

The RRAS was developed by a committee of mental health 

experts and members of the law enforcement community convened by 

the Attorney General. See In re Registrant of C.A., 146 N.J.

71, 82 (1996); In re Registrant V.L., 441 N.J. Super. 419, 425

(App. Div. 2015). The RRAS was created in response to the 

Legislature's directive in Megan's Law for the Attorney General 

to promulgate guidelines and procedures for notification of a 

sex offender's whereabouts, depending upon the offender's degree 

of risk of re-offense. N.J.S.A. 2C:7-8; V.L., supra, 441 N.J. 

Super. at 428-29. The RRAS is divided into four categories 
43 A-2415-16T7

corresponding to the individual's seriousness of offense, 

offense history, personal characteristics, and community 

support. Id. at 429. Each category contains at least two of a 

total of thirteen criteria, and each such criterion is assigned 

a score corresponding to a low, moderate, or high risk 

assessment. Ibid. The factors are then all assigned weights

with a multiplier, producing an overall score that numerically 

classifies the offender in either Tier 1 (low risk of reoffense), Tier 2 (moderate risk of re-offense), or Tier 3 (high 

risk of re-offense). Ibid. The scoring is to be conducted in 

accordance with Guidelines issued by the Attorney General, id.

at 426, and a Registrant Risk Assessment Manual, id. at 429. 

Placement in Tier 3 under Megan's Law means that a

defendant has been found by clear and convincing evidence to be 

in "the highest risk [of re-offense] category for sexual 

offenders[,] requiring Internet registration and the most 

comprehensive degree of community notification." Riley v. N.J. 

State Parole Bd., 219 N.J. 270, 276 (2014); M.F., supra, 169 

N.J. at 52-54.

Here, when defendant was designated as a Tier 3 Megan's Law 

offender, he presumably underwent a comprehensive evaluation in 
44 A-2415-16T7

order to determine the likelihood that he would re-offend.21 The 

precise nature of his original offenses would have been 

considered. Many aspects of his life and character would have 

been assessed. Another trial judge conducted a hearing on that 

classification, at which defendant presumably had the right to 

counsel.

It is obvious that an assessment conducted pursuant to 

Megan's Law tier review comprises a material, although not 

dispositive, source of information for a trial court when 

conducting a detention hearing. The tier classification 

logically falls within the broad ambit of N.J.S.A. 2A:162-

20(c)(1), which authorizes the pretrial detention judge to 

consider a defendant's "character," "physical and mental 

condition," "past conduct," and other personal history and 

characteristics.

In fact, many of the risk-related considerations within the 

Megan's Law assessment topically correspond to those at issue 

under the Act, in gauging a defendant's likelihood of reoffending while on release. The Megan's Law tier classification

should be particularly instructive where, as here, the defendant 

is charged with new sexual offenses.

 

21 As we have noted, we do not know the current status of 

defendant's tier classification in the wake of the December 2016 

remand.
45 A-2415-16T7

D.

The final legal issue before us is whether, as the 

Prosecutor argued in his initial brief, a Pretrial Services 

recommendation to detain a defendant creates, under Rule

3:4A(b)(5), a rebuttable presumption against release that a 

defendant must overcome. At oral argument on the appeal, the 

Prosecutor withdrew this particular argument.

To aid the trial bench and bar, we should nevertheless 

point out that, as the Rule expressly states, a Pretrial 

Services recommendation to detain a defendant may be, but is not 

required to be, relied upon by the court as "prima facie 

evidence" to support detention. R. 3:4A(b)(5). Again, the use 

of the term "may" within the provision signals discretion. 

Harvey, supra, 30 N.J. at 391. The court may require a 

prosecutor to rely upon more than the PSA and the recommendation 

to carry its burden. Cf. Ingram, ___ N.J. Super. ___ (slip op. 

at 33) (analogously noting the court's discretion to require a 

prosecutor to provide a more expansive proffer to establish 

probable cause).

III.

Having addressed these various general points of law 

implicated by the new Act, we finally turn to the trial court's 

rulings in this case. We approach our review acutely cognizant 
46 A-2415-16T7

that the court's rulings were issued in the first month of the 

new Act's implementation. That was before any published case 

law construing the Act had emerged and while prosecutors, 

defense lawyers, and court personnel were all adjusting to the 

many operational challenges presented by the new statute. 

Indeed, much of the trial court's oral and written analysis 

focused on discovery and proffer issues that had yet to be 

addressed in a published opinion, until this court's respective 

February 2017 decisions in Robinson and Ingram.

With that context and timing in mind, and affording all due 

deference to the trial court's zone of discretion, we have 

several reservations about the court's reasoning, as well as the 

sufficiency of the record.

Despite the temporary remand, the trial court did not 

explain in writing specifically why it deviated from the portion 

of the Pretrial Services recommendation advising against 

defendant's release. As we have already noted, such a written 

explanation is required by the Act in N.J.S.A. 2A:162-23(a)(2). 

We suspect that this critical omission may have been caused by 

the somewhat confusing two-part format of the PSA, which the 

Judiciary has now corrected prospectively since March 2. It is 

conceivable that the trial court may have perceived that the 

second part of the Pretrial Services recommendation stating, "If 
47 A-2415-16T7

released, weekly reporting + HD/EM," meant that detention and 

release on conditions were equally recommended for C.W. As the 

Acting Administrative Director's March 2 memo clarified, such 

equivalency was not intended under the prior format. 

We recognize the public defender and the ACLU have argued 

that a Pretrial Services recommendation to detain is automatic, 

or at least virtually automatic, for any defendant charged with 

a sexual assault. Even if the recommendation to detain in such 

cases is, in fact, an automatic, computer-generated certainty in 

sexual assault cases, the statute nevertheless obligates the 

trial court to provide written reasons explaining why it is 

departing from that recommendation, whatever its genesis. That 

unfortunately was not done here.

The trial court did mention in its rulings the two low

scores in defendant's PSA for FTA and NCA, and the absence of a 

violence flag. We cannot tell, however, how much weight the 

court actually placed on those low numbers. The numbers are not 

particularly informative here since they do not reflect 

defendant's juvenile history, and since he would presumably not 

have skipped a court appearance while he was confined for 

several years at Jamesburg.

We are also concerned about the trial court's abbreviated 

passing references to defendant's juvenile record and his
48 A-2415-16T7

classification under Megan's Law. The court did mention the 

existence of those things in its oral ruling, but did not 

explain why they did not make a difference to the outcome. 

The present record on these points is also deficient to 

afford meaningful consideration. We do not know what conduct 

was involved in defendant's two violations of probation in 2012 

and 2013. Apparently, he was not charged with additional 

substantive offenses stemming from those incidents, but that 

does not necessarily mean that they were minor or did not 

correlate in some way to defendant's past wrongful behavior. 

Similarly, there is no information in this record about the 

timing, details, underlying rationale, or current status of the 

tier classification under Megan's Law. 

As an additional concern, we lack confidence that in 

denying detention the trial court sufficiently took into account 

several points stressed by the State, including defendant's 

alleged commission of a new sexual offense after his discharge 

from Jamesburg, the close proximity of the minor's residence 

(which only seemed to come into play in phase two of the January 

25 hearing with respect to modifying the conditions of release), 

and overall public safety considerations.

The Prosecutor and the Attorney General urge that we 

reverse the trial court's ruling and issue our own order 
49 A-2415-16T7

mandating detention. Conversely, defense counsel and the ACLU 

submit that we affirm the trial court's ruling as is, although 

they candidly acknowledge certain shortcomings in the record and 

the court's analysis. They also maintain that the statute only 

permits the State or a defendant to reopen a detention hearing 

with material information that was "not known" to that party at 

the time of the original hearing. N.J.S.A. 2A:162-19(f).

We adopt neither advocated course of action. Instead, we 

remand the matter for reconsideration by the trial court, which 

will now have the benefit of the new case law, as well as the 

March 2, 2017 guidance memorandum and this opinion. The parties 

and the court shall develop or clarify the record further, as 

may be feasible and fair under the circumstances. 

In issuing this remand, we do not encourage prosecutors in 

the future to make "bare-bones" presentations at detention 

hearings with an expectation that they will automatically 

receive a second chance at amplifying their contentions if they 

do not prevail. Nor do we invite defense counsel or trial 

judges, despite the busy and rapid-paced nature of this docket, 

to cut corners unduly. Nevertheless, as our system adapts to 

the new law, a remand in this case is a fair and instructive 

outcome.
50 A-2415-16T7

In the meantime, the stringent conditions of defendant's 

release set forth in the trial court's January 25, 2017 order 

shall remain in place, unless and until the trial court issues a 

superseding order. The aggrieved party on the outcome of 

reconsideration may seek review in a new appeal or motion for 

leave to appeal. We do not retain jurisdiction.

Remanded for further consideration by the trial court, 

consistent with this opinion.