### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1149- 23 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. GREGORY Q. GREEN, Defendant-Appellant.

________________________

Argued February 7, 2024

– Decided February 23, 2024 Before Judges Vernoia and Walcott-Henderson. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Middlesex County , Indictment No. 23- 06 -0681. Joshua David Altman argued the cause for appellant (Benedict Altman & Nettl, LLC, attorneys; Joshua David Altman, on the brief). Randolph E. Mershon, III, Assistant Prosecutor, arg ued the cause for respondent (Yolanda Ciccone, Middlese x County Prosecutor, attorney; Randolph E. Mershon, I II, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1149

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By leave granted, defendant Gregory Q. Green appea ls from a November
17 , 2023 order denying his motion to reopen his deten tion hearing under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162 -15 to - 26

. Having consider ed the record and arguments presented, the applicable legal principles, and the State's candid concession at oral argument that a remand is appropriate based on the unique circumstances presented, we vac ate the court's order and remand for the court to reconsider defendant's moti on to reopen on the merits.
I. The pertinent facts are not disputed. On March 14, 2022, defendant was arrested and charged in a complaint-warrant allegin g that on the same date, he committed the following offenses: third-degree bur glary and fourth-degree criminal mischief. Defendant was separately arrest ed on March 14, 2022, on charges he committed a third-degree burglary and th ird-degree theft on January 8, 2022. The State moved for pretrial detention under the CJ RA on the burglary and criminal mischief charges alleged in the complaint-w arrant, and the Pretrial Services' Public Safety Assessment (PSA) yielded a score of four out of six for risk of failure to appear and five out of six for risk of new criminal activity. The PSA further showed that four days after his March 1 4, 20 22 arrest, the State3 A- 1149

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separately charged defendant with an additional sixty -three offenses. 1 At the time of his arrest, defendant had three prior crimi nal convictions, two for second-degree burglary and the other for third-degr ee possession of a controlled dangerous substance. The PSA recommended defendant 's release with conditions. The court denied the State's motion for pretrial de tention and released defendant on "Level III+" monitoring with conditions, which included strict home detention and required that defendant " not commit any offense during the period of release." Later in March 2022, the State moved for revocatio n of defendant's pretrial release, claiming he violated the conditio ns of his release. The court denied the motion, finding the State failed to pres ent clear and convincing evidence that revocation of defendant's release was "necessary to reasonably assure [ his ] appearance in court when required, the protection of the safety of any other person or the community, and that [he] wi ll not obstruct or attempt to obstruct the criminal justice process."

1 The charges included third-degree burgla ry , third-degree theft, third-degree trespass, fourth-degree criminal mischief, and vari ous disorderly persons offenses. The PSA shows the offenses were allegedl y committed on various dates in 2021 and 2022 prior to defendant's March 1 4, 2022 arrest. The State did not move for pretrial detention on the sixty-on e new charges listed as pending on the PSA.4 A- 1149

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Four months later, a July 14 , 2022 complaint-warrant charged defendant with fourth-degree tampering with physical evidence . More particularly, the complaint-warrant alleged that on or about April 8, 2022, defendant tampered with evidence

— his personal Google account's location activity and map data

— related to the ongoing investigation of defendant's alleged invol vement in various burglaries. The State moved for pretrial detention on the tamp ering charge. The State did not, however, move for revocation of defendant' s release on the March 14, 2022 complaint-warrant based on defendant's alleged comm ission of the newlycharged tampering offense. The PSA issued in connection with the State's moti on for pretrial detention on the tampering charge showed risk scores of four out of six for failure to appear and six out of six for new criminal activity. The PSA included a "no release" recommendation and a new risk of violent a ctivity flag. The PSA also listed over two hundred other then-pending charges, including those for which defendant was arrested on March 14, 2022, as well a s others allegedly committed during the two years prior to that arrest. 2

2 The charges again included third-degree burglary, t hird-degree theft, thirddegree trespass, fourth-degree criminal mischief, a nd various disorderly persons offenses.5 A- 1149

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On July 19, 2022, the court granted the State's mo tion for pretrial detention on the fourth-degree tampering charge. In a detailed order, the court explained the State had proffered that defendant ha d "contacted Google, Facebook and Comcast in order to delete data relate d to location, mapping and date range in an effort to obstruct the criminal ca se"

— based on his March 14,
2022 arrest

— "against him." The court explained it was "satisfied that there ar e no conditions of release that will prevent defendan t from obstructing the criminal justice process" because defendant was "ch arged with tampering while on home detention." In September 2022 , defendant moved to reopen the detention hearing and for reconsideration of the detention order. In support of the motion, defendant argued he should be released pending trial because the State did not establish probable cause he committed the the n-charged tampering offense. The court rejected the argument and denied the motion in an O ctober 20, 2022 order and accompanying statement of reasons. We granted defe ndant's motion for leave to appeal from the court's order and summarily affi rmed. In June 2023, a grand jury returned an indictment charging defendant with : fourth-degree tampering with evidence, fourth-degre e hindering apprehension of himself, and fourth- de gree hindering the apprehension of6 A- 1149

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another individual. The charges arose from the allegations made in the complaint-warrant that had charged defendant with f ourth-degree tampering for which the court had ordered his detention on July 1 9, 2022. Fifteen months later, in October 2023, defendant a gain moved to reopen his detention hearing, vacate the July 2022 pretria l detention order, and release defendant on non-monetary conditions. In support of the motion, defendant argued there was information not known when the Jul y 2022 detention order was entered that had a material bearing on the court's release decision such that it warranted vacatur of the pretrial detention order a nd defendant's release pending trial. More particularly, defendant presented evidence tha t following the July 2022 detention order, it was determined he was clinically eligible for admission into the Recovery Court program due to a substance abuse is sue and that he was participating in a substance abuse program at the M iddlesex County Adult Correction Center addressing "issues related to his substance abuse and its connection with his legal problems." Defendant als o presented evidence demonstrating his completion of anger management co unseling and participation in a four-month hospital-sponsored "R ecovery Meeting." Defendant further presented evidence

— a letter from the Middlesex County7 A- 1149

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Prosecutor's Office

— proposing a plea offer that would result in a resolution of all the pending charges against defendant and inclu de a recommendation for imposition of a ten-year custodial sentence with a two-year period of parole ineligibility. Defendant also argued that, at the time the motion was filed, he had been detained for fifteen months on the fourth-degree tampering charge that carried a maximum sentence of eighteen months

. See N.J.S.A. 2C: 43 -6(a)(4) (providing the sentence for a fourth-degree offense "shall not exceed [eighteen] months"). Defendant claimed the length his then-detention, in relation to his potential maximum sentence, warranted a reopening of his dete ntion hearing and reconsideration of the detention order. The court denied the motion. In a succinct statement of reasons supporting its decision, the court noted that defen dant was detained on fourthdegree criminal "charges in which he was essentiall y tampering with evidence " and "tried to delete data related to location infor mation that the State was seeking in its investigation of numerous burglaries ." The court recognized that based on the length of his pretrial detention, defendant mig ht "soon max out" on the sentence that could be imposed on the fourth-degre e "charges" for which he was detained. The court rejected defendant's relia nce on that circumstance,8 A- 1149

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reasoning that defendant was "still facing numerous separate [third-]degree burglar[y]" charges. The court further found the information concerning def endant's alleged commission of the tampering offense "was known at t he previous detention hearing and . . . has not changed." The court reje cted defendant's reliance on his participation in the various programs during his pretri al detention, finding it d id "not rise to the level of 'having material bearing on the release decision.'" The court entered a November 17, 2023 order denying def endant's motion. Although not addressed by the State or the court in connection with defendant's motion to reopen his detention hearing, in November 2023, a grand jury returned a forty-one count indictment against defendant charging him with various third- and fourth-degree offenses. The Sta te did not separately seek defendant's detention on the charges in the indictm ent. At oral argument on defendant's present appeal, the S tate advised that defendant was recently charged in additional indict ments with one - hu ndredfifty-five charges arising from the numerous compla ints that have been filed against him over the past few years. Again, the St ate did not separately seek a detention order on those charges.9 A- 1149

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On December 14, 2023, we granted defendant's motio n for leave to appeal from the November 17, 2023 order denying his motion to reopen his detention hearing on the fourth-degree charges for which h e has been detained since entry of the July 19, 2022 pretrial detention order. In support of his appeal, defendant makes the following argument:

POINT I THE INTERESTS OF JUSTICE COMPEL THE GRANT OF LEAVE TO APPEAL, AND A REMAND FOR A DETENTION HEARING.
II. We review a trial court's release and detention de terminations under the CJRA for an abuse of discretion. State v. S.N. , 231 N.J. 497, 515 (2018). A court abuses its discretion when its decision "'res t[s] on an impermissible basis' or was 'based upon a consideration of irrelevant or inapp ropriate factors,'" ibid

. , (alteration in original) (quoting State v. Steele, 430 N.J. Super. 24, 34 -35 (App

. Div. 2013 )) , "'fails to take into consideration all relevant fac tors,'" or "'reflects

a clear error in judgment,' " ibid. (quoting State v. Baynes, 148 N.J. 434, 444 (1997)).
A court's decision that is "'based up on a misconception of the law . . . is not entitled to any particular deference and conseq uently will be reviewed de10 A- 1149

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novo. '" Ibid. We also do not owe "'deference to a trial court[ 's ] decision that fails to "provide factual underpinnings and legal b ases supporting [its] exercise of judicial discretion. "' " Ibid. (alterations in original) (quoting State v . C.W. , 449 N.J. Super. 231, 255 (App. Div. 2017)). Thus, "a trial court's decision not supported by articulable facts is not entitled to d eference and may constitute an abuse of discretion." Ibid. ; see also Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted) (explaining a co urt abuses its discretion in part when its decision is "made without a rational explanation"). Under the CJRA, a defendant is permitted to apply t o reopen a detention hearing at any time prior to trial. State v. Hyppo lite , 236 N.J. 154, 164 (2018). N.J.S.A. 2A:162-19(f) prescribes the standard gover ning an application to reopen a detention hearing. The statute provides i n pertinent part that a detention hearing may be reopened . . . if the court finds th at

information exists that was not known to the prosec utor or the eligible defendant at the time of the hearin g and that has a material bearing on the issue of whether there are conditions of release that will 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 justic e process. [N.J.S.A. 2A:162 -19(f).]11 A- 1149

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The statute provides the "path" for reconsideration of a detention decision "when (1) there is new information, or a change in circum stances, (2) that is material to the release decision." In re Request to Release Certain Pretrial Detainees , 245 N.J. 218 , 235 (2021). Where a court denies a motion to reopen a detention hearing, "it should provide a statement of reasons for review on appeal ." Hyp polite , 236 N.J. at 172; see also R. 1:7 -4(a). A court's "[f]ailure to make explicit findings and clear statements of reasoning [impedes meaningful appella te review and] 'constitutes a disservice to litigants, the attorneys, and the a ppellate court.'" Gnall v. Gnall , 222 N.J. 414, 428 (2015) (citation omitted). In ad dition, an abuse of discretion arises, at least in part, when a decision is "made without a rational explanation." Flagg, 171 N.J. at 571 (citation omitted). Here, defendant argues the court abused its discre tion by failing to make adequate findings of fact supporting its decision. Defendant further contends the court did not properly apply the standard for r eopening a detention hearing under N.J.S.A. 2A:162-19(f) because it did not consider information

— his "drug dependency" as confirmed by the Recovery Court asse ssment and his subsequent participation in a substance abuse program

— that was not available when the pretrial detention order was entered in July 2022 a nd which he claims has a12 A- 1149

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material bearing on the release decision. Defendant also argues the court erred by failing to consider that he was detained only on fourth-degree offenses , relying on other charges for which he had not been detained, and not considering the State's plea offer in its determination of his motion.
We are not persuaded by defendant's claim the Recover y Court determination that he suffers from a substance abuse issue, and his participation in a substance program while incarcerated pursuant to the July 19, 2022 pretrial detention order, support a reopening of his detenti on hearing under N.J.S.A. 2A:162 -19(f). In the first instance, defendant did not p resent any evidence his substance abuse issue

— whether formally diagnosed or not

— constituted
inf ormation that was not known to him as the "eligible defendant at the time of the hearing." N.J.S.A. 2A:162-19(f). Thus, he failed to sustain his burden of establishing his substance abuse issue constituted "new information, or a change in circumstances" different than those extant when the court first entered the pretrial detention order. In re Pretrial Detainees , 245 N.J. at 235. Similarly, defendant attempts to make too much out of too little in arguing that his participation in a substance abuse treatme nt program during his pretrial detention represented a changed circumstance warranting a reopening of his detention hearing. The claim is unsupported by an affidavit or certification13 A- 1149

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supporting the facts on which it is based. See R. 1:6 -6. Moreover, the letter defendant provides in support of the claim says not hing more than he has been "attending" the program and "present[ed] a willingn ess to address his issues related to his substance abuse." The letter does not describe the program, state that he completed it, offer a prognosis or assessme nt, or otherwise provide any information that constitutes a changed circumstance that appears in any manner "material to the release decision." In re Pretrial Detainees, 245 N.J. at 235

. We therefore reject defendant's claim the court er red by denying his motion to the extent it is founded on his claim the Recovery Court determin ation that he suffered from a substance abuse issue and h is participation in the substance abuse program required a reopening of his detention hearing. The putative evidence he presented in support of the cl aim is inadequate to sustain his burden under N.J.S.A. 2A: 162 -19(f). The same cannot be said about defendant's claim he was entitled to a reopening of his detention hearing because at the t ime the court decided his motion

— November 17, 2023

— he had been detained for sixteen months on charges for which the maximum sentence that could r easonably be expected to be imposed if he is convicted is only eighteen mont hs. See N.J.S.A. 2C:43- 6(a)(4). Indeed, at present, defendant has been de tained pretrial for nineteen14 A- 1149

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months, one month in excess of the maximum sentence the parties agree could reasonably be expected to be imposed if defendant i s convicted of the three pending fourth-degree offense s that arose out of the complaint-warrant charging the fourth-degree tampering offense for which he is being detained. 3 The motion court abused its discretion by rejectin g defendant's claim that the length of his pretrial detention on the fourth- degree offenses

— in relation to his potential maximum sentence

— warranted a reopening of his detention hearing under N.J.S.A. 2A:162-19(f). The court rejected the claim, reasoning the length of defendant's detention on the fourth-degree charges for which his pretrial detention was ordered did not require a re opening of defendant' s detention hearing because of the numerous other charges, including many thirddegree offenses, presently pending against him.

3 In a refreshing expression of candor, the State als o conceded the principles applicable to the imposition of consecutive sentenc es of imprisonment under State v. Yarbough , 100 N.J. 627 (1985), would not likely support the i mposition of consecutive sentences on the three pending fourt h-degree offenses in the indictment if defendant is co nvicted of the offenses at trial. Although not bou nd by that concession if the matter proceeds to trial, the State concedes that for purposes of defendant's motion to reopen his detent ion hearing, defendant has been detained at present in excess of the maximum p eriod

— eighteen months

— for which he would likely be sentenced if convicted of the three fourth-degree offenses. See N.J.S.A. 2C:43-6(a)(4).15 A- 1149

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In making that determination, the court did not con sider that the only extant detention order

— the one for which defendant sought a reopening of h is detention hearing

— was issued solely based on the complaint-warrant fo r tampering that later resulted in defendant's indict ment on three fourth-degree offenses. The State never sought revocation of def endant's original release on the March 2022 bu rglary and criminal mischief charges for which he h ad been released on Level III+ monitoring, even after defen dant allegedly committed the tampering offense for which he has been detained. The State also has never sought a pretrial detention order on the numerous other c harges for which defendant has been subsequent ly charged, arrested, and indicted.
It was an error for the court to reject defendant's m otion to reopen his detention hearing based simply on the pendency of o ther charges for which the State has not seen fit to request detention. By do ing so, the court effectively made a detention determination on those other charg es without affording defendant the protection of procedural requirements and safeguards embodied in the CJRA to which he is entitled. A defendant may seek a reopening of a detention hea ring based on a claim of unduly prolonged pretrial detention under two so urces of authority

— N.J.S.A. 2A:162 -19(f) and constitutional principles. See In re Pr etrial Detainees, 24516 A- 1149

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N.J. at 230. Under the latter source, "due process concerns impose limits on how long a defendant ma y be held in custody before trial," because "if pretr ial detention . . . is significantly prolonged, a defen dant's confinement may become punitive." Id. at 2 31 (citation omitted). Here, defendant sought a reop ening of his detention hearing under N.J.S.A. 2A:162 -19(f). In Matter of Pretrial Detainees, the Court consider ed whether defendants whose pretrial detentions were prolonged due to the COVID-19 pandemic were entitled to reopen their detention hearings under N .J.S.A. 2A:162-19(f). 245
N.J. at 231- 32 . The Court determined that "[t]he unexpected dura tion of the pandemic" and the attendant "continued suspension o f jury trials . . . constitute[d] new information or a cha nge in circumstances" sufficient to satisfy the requirements of the first prong of t he standard for reopening under N.J.S.A. 2A:162-19(f). Id. at 236. Here, based on the unique circumstances presented, we similarly conclude that the confluence of factors resulting in defenda nt's pretrial detention for time now exceeding the maximum period for which he could reasonably be sentenced if convicted of the only charges for which he is be ing detained constitute a sufficient change of circumstances warranting reope ning under the first prong of the statutory standard. Id. at 235; N.J.S.A. 2A :162-19(f). For that reason, we17 A- 1149

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vacate the court's order and remand for it to reconsider defendant's motion to reopen his detention hearing under N.J.S.A. 2A:162- 19(f) , address and make findings under the second prong

— materiality

— of the statutory standard, and decide the motion anew. We note the court did not make any findings concern ing the materiality prong of the statutory standard other than a conclusory dete rmination defendant did not satisfy it. Defendant's claim concerning t he length of his pretrial detention as a change in circumstances requires mor e under Matter of Pretrial Detainees

. 245 N.J. at 237. A determination of materiality re quires an analysis of "whether the circumstances" at the present time "warrant a defendant's continued detention," and that analysis "calls for a renewed examination of whether any combination of conditions would reasona bly assure against the risk of non-appearance, danger, or obstruction in light of" defendant's continuation beyond the time he could otherwise reasonably be ex pected to serve as a maximum sentence for the three fourth-degree offens es for which he is presently being detained pursuant to the July 19, 2022 order. See i bid. In assessing those risks, the Court has suggested c onsideration of the following factors pertinent here : "1. The length of detention to date as well as the projected length of ongoing detention[,] " id. at 237; "2. [w]hether a18 A- 1149

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defendant has been or will be in detention longer t han the likely amount of time the person would actually spend in jail if convicte d[,] " id. at 238; "3. [t]he existence and nature of a plea offer[,] " ibid. ; and "[4.] [o]ther factors relevant to pretrial detention that are outlined in N.J.S.A. 2A :162- 20 [,] " id. at 239. 4 On remand, the court shall permit the parties to su pplement their submissions and make such additional arguments and requests as they deem appropriate and pertinent to defendant's motion to reopen his detention hearing under N.J.S.A. 2A:162-19(f). The court shall consi der and decide the motion based on the record presented and shall make findin gs of fact and conclusions of law supporting its determination. R. 1:7 -4. Our decision to vacate and remand for further proceedings shall not be interpret ed as expressing an opinion

on the merits of

defendant's motion. Vacated and remanded for further proceedings in acc ordance with this decision. We do not retain jurisdiction.

4 The Court also identified an additional factor, " [a] defendant's particularized health risks, if any, and whether they present a he ightened risk the individual will contract COVID- 19 [,] " id. at 239, that is inapplicable here.