RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4350-16T6
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JULIAN SANDERS,
Defendant-Respondent. __________________________
Argued September 28, 2017 – Decided November 16, 2017
Before Judges Simonelli, Haas and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. W-2017- 7415-0714.
Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Mr. Ducoat, of counsel and on the brief).
Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Lerer, of counsel and on the brief). PER CURIAM
Defendant Julian Sanders was charged with murder, N.J.S.A.
2C:11-3(a)(1), and related weapons charges stemming from the
stabbing death of Kendal Anthony. In this appeal, we consider
whether the trial court abused its discretion in finding defendant
rebutted the presumption of pretrial detention pursuant to
N.J.S.A. 2A:162-19(b) by a preponderance of the evidence.
I.
The affidavit of probable cause indicates that a witness
identified defendant in a photo array and surveillance video
captured the incident. The video, which has no sound, shows
defendant approaching a liquor store in Newark where he encountered
Anthony, and the two began arguing. During the argument, defendant
removed a knife from his front pants pocket. When Anthony threw
a punch at defendant, defendant stabbed him once in the chest,
causing his death.
Pretrial Services generated a Public Safety Assessment (PSA),
which reflected that defendant was forty-seven years old and
charged with a violent offense. The PSA indicated defendant had
no pending charge at the time of offense and no prior violent
convictions or failure to appear pretrial in the past two years.
The PSA also indicated defendant had three prior indictable
convictions; sixteen prior disorderly persons convictions; prior
2 A-4350-16T6 failure to appear pretrial older than two years; and prior sentence
to incarceration. Pretrial Services rated defendant with a score
of three for both failure to appear and new criminal activity.
There was no new violent criminal activity flag. Pretrial Services
recommended no release.
The State filed a motion for defendant's pretrial detention
based on the presumption of detention for defendants charged with
murder and on Pretrial Services' no release recommendation. The
State argued defendant's release created a risk that he would not
appear at future court proceedings and would present a danger to
the community. The State provided the complaint-warrant,
affidavit of probable cause, the PSA, the surveillance video, and
defendant's videotaped statement to the police.
Defendant did not contest probable cause or that the
presumption of detention applied. Rather, defense counsel argued
defendant was not the aggressor, acted in self-defense, had a non-
violent criminal history, and was not a danger to the community
or at risk of not appearing in court. Defense counsel represented
that defendant had strong family support and would reside with his
mother and brother, who would guarantee his appearance in court.
In addition, defendant attended elementary and high schools in
Irvington, worked at a maintenance company in 2014 and 2015
cleaning offices and windows until he was injured on the job, was
3 A-4350-16T6 very cooperative, and was remorseful despite claiming self-
defense.
The State countered that the video showed defendant was the
aggressor and Anthony threw the punch after defendant raised the
knife up to Anthony's face. The State argued that defendant had
a duty to retreat, could have walked away, and was "an
extraordinary risk to the community," based on his lengthy criminal
history and conduct in this case.
The court did not review defendant's videotaped statement to
police. However, defense counsel represented that defendant said,
"I should've just gone home," and expressed remorse. The State
represented that defendant said he was high, came to the store to
get a cigarette, and could and should have walked away, but "really
wanted a cigarette."
The court viewed the surveillance video and disagreed with
the State's description of the incident. The court noted that
Anthony was much younger, bigger, and stronger than defendant, and
appeared to be the aggressor throughout the argument. The court
agreed with the defense that defendant was not the aggressor and
it clearly appeared on the video that he was acting in self-defense
when he stabbed Anthony.
The court recognized that the PSA recommended no release, but
noted it had to consider a number of other factors. The court
4 A-4350-16T6 assessed the nature and circumstances of the offense charged and
weight of the evidence, and determined the State's case for murder
was not very strong. The court also considered other factors,
such as defendant's history and characteristics, and concluded
that
under the circumstances, even with his prior criminal record, even with the PSA's recommendation of no release . . . this [c]ourt is satisfied that the [defendant] has rebutted the presumption in this case and that there are condition[s] or combination of conditions that would assure [his] appearance in court when required, as well as the protection of other persons in the community.
The court ordered defendant's release with the condition of twenty-
four hour home supervision at his mother's residence and electronic
monitoring. Defendant's release was stayed pending appeal.
We review the trial court's decision on a motion for pretrial
detention for abuse of discretion. State v. C.W., 449 N.J. Super.
231, 256 (App. Div. 2017). An abuse of discretion may be found
"when a decision 'rest[s] on an impermissible basis' or was 'based
upon a consideration of irrelevant or inappropriate factors.'"
Id. at 255 (alteration in original) (quoting State v. Steele, 430
N.J. Super. 24, 34-35 (App. Div. 2013), certif. improvidently
granted, 223 N.J. 284 (2014)). An abuse of discretion may also
be found "when the trial court fails to take into consideration
5 A-4350-16T6 all relevant factors [or] when its decision reflects a clear error
in judgment." Ibid.
Here, the court's decision rested on its view of the
surveillance video. "When more than one reasonable inference can
be drawn from the review of a video recording, . . . a trial
court's factual conclusions reached by drawing permissible
inferences cannot be clearly mistaken, and the mere substitution
of an appellate court's judgment for that of the trial court's
advances no greater good." State v. S.S., 229 N.J. 360, 380
(2017). However, "[a]ppellate courts have an important role to
play in taking corrective action when factual findings are so
clearly mistaken -- so wide of the mark -- that the interests of
justice demand intervention." Id. at 381. "Deference ends when
a trial court's factual findings are not supported by sufficient
credible evidence in the record." Ibid.
The State concedes that S.S. precludes us from applying a de
novo review of a trial court's findings based on video evidence.
However, the State argues the court's decision was not supported
by sufficient credible evidence because the surveillance video did
not implicate self-defense. The State posits that, similar to the
standard applied for a motion to dismiss an indictment, the
evidence should be viewed in a light most favorable to the State
at this early stage of the case. Citing State v. Robinson, 229
6 A-4350-16T6 N.J. 44, 68 (2017) to support its argument that a pretrial
detention hearing "should not turn into a mini-trial," the State
contends it was not required to disprove every possible affirmative
defense. The State insists that the surveillance video provides
strong evidence for a jury to find defendant guilty of murder, and
the court was clearly mistaken in concluding otherwise.
The State argues that the court abused its discretion by
putting controlling weight on the surveillance video and rendering
its own verdict of self-defense when the following factors set
forth in N.J.S.A. 2A:162-20 weighed in favor of detention: (1)
defendant is charged with murder and faces a minimum sentence of
thirty years without parole; (2) the weight of the evidence is
strong and includes the surveillance video, eyewitness
identification, and defendant's inculpatory statement to the
police; (3) defendant committed the crime while residing with his
mother; and (4) defendant's criminal history bespeaks reoffending.
The State also argues that Pretrial Services' no release
recommendation, coupled with the statutory presumption for
defendants charged with murder, is strong evidence supporting
defendant's pre-trial detention. The State posits that under Rule
3:4A(b)(5), a recommendation against release is prima facie
evidence sufficient to overcome the presumption of release, and
where there is a presumption of detention, the recommendation
7 A-4350-16T6 should be even more difficult to overcome. Lastly, the State
argues that when a presumption of detention is triggered, release
should be the uncommon exception. The State maintains this result
necessarily follows from our statement in C.W., supra, 449 N.J.
Super. at 257, that where the presumption is not triggered,
detention is "the appropriate result for only a limited group of
the most serious cases."
Defendant counters that if the presumption of detention
cannot be rebutted by the court's finding of a viable self-defense
claim, it would effectively mean there is no murder case in which
the presumption could be rebutted, as long as there is probable
cause the defendant committed the crime. Defendant maintains that
the court properly considered all of the relevant factors in
N.J.S.A. 2A:162-20, and self-defense related to two of those
factors: the nature and circumstances of the offense charged and
the weight of the evidence.
II.
The focus of the Criminal Justice Reform Act (CJRA), N.J.S.A.
2A:162-15 to -26, is to "rely[] upon pretrial release by non-
monetary means" to achieve the goals of "reasonably assur[ing] an
eligible defendant's appearance in court when required, the
protection of the safety of any other person or the community,
[and] that the eligible defendant will not obstruct or attempt to
8 A-4350-16T6 obstruct the criminal justice process." N.J.S.A. 2A:162-15.
However, a prosecutor may file a motion for pretrial detention
when a defendant is charged with certain crimes, including murder.
N.J.S.A. 2A:162-19(a).
When a prosecutor seeks pretrial detention, in most cases
there is a "rebuttable presumption that some amount of monetary
bail, non-monetary conditions of pretrial release or combination
of monetary bail and conditions" would satisfy the three goals of
the CJRA. N.J.S.A. 2A:162-18(b). When a prosecutor seeks pretrial
detention of a defendant who has not yet been indicted, such as
defendant here, the court must first determine whether there is
probable cause that the defendant committed the charged offense.
N.J.S.A. 2A:162-19(e)(2). Defendant conceded there was probable
cause, so this requirement was satisfied.
Once the court has found probable cause that the defendant
committed murder or any crime for which the defendant would be
subject to an ordinary or extended term of life imprisonment,
there shall be a rebuttable presumption that the eligible defendant shall be detained pending trial because no amount of monetary bail, non-monetary condition or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process[.]
9 A-4350-16T6 [N.J.S.A. 2A:162-19(b).]
The presumption of pretrial detention may be rebutted by a
preponderance of the proof "provided by the eligible defendant,
the prosecutor, or from other material submitted to the court."
N.J.S.A. 2A:162-19(e)(2). "If the presumption is rebutted by
sufficient proof, the prosecutor shall have the opportunity to
establish that the grounds for pretrial detention exist[.]" Ibid.
To establish the grounds for pretrial detention, the prosecutor
must show by clear and convincing evidence
that no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions will reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process[.]
[N.J.S.A. 2A:162-19(e)(3).]
The State did not argue that defendant would obstruct or
attempt to obstruct the criminal justice process. Thus, the
question is whether defendant rebutted the presumption of pretrial
detention. If so, the second question is whether the State proved
detention is warranted by clear and convincing evidence.
N.J.S.A. 2A:162-20 sets forth factors the court may consider
in determining whether monetary bail, pretrial release conditions
10 A-4350-16T6 or a combination of the two, can achieve the goals of the CJRA.
Specifically,
the court may take into account information concerning:
a. The nature and circumstances of the offense charged;
b. The weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded;
c. The history and characteristics of the eligible defendant, including:
(1) the eligible defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(2) whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;
d. The nature and seriousness of the danger to any other person or the community that would be posed by the 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
11 A-4350-16T6 f. The release recommendation of the pretrial services program[.]
[N.J.S.A. 2A:162-20.]
The court here recognized that it must consider the factors
set forth in N.J.S.A. 2A:162-20 to reach its decision. Contrary
to the State's position, it was proper for the court to consider
evidence of defenses to the charged offense that were relevant to
the court's pretrial detention determination. Certainly, if
defendant has a viable claim of self-defense, that information
would be relevant to whether defendant poses a danger to the
community or a risk of flight. The liberal construction to be
afforded the CJRA, see N.J.S.A. 2A:162-15, would seem to embrace
consideration of any relevant evidence regarding the nature and
circumstances of the offense and weight of the evidence against
the defendant in reaching a pretrial detention decision.
The State's argument that requiring it to disprove an
affirmative defense would turn the detention hearing into a mini-
trial is unpersuasive. Both parties relied on the surveillance
video to establish their competing claims of murder and self-
defense. We discern no reason why it would be improper for the
court, when viewing the video, to consider the arguments of both
parties in analyzing the nature and circumstances of the offense
and the weight of the evidence. The court could properly draw
12 A-4350-16T6 inferences from the video to determine whether defendant poses a
danger to the community or a risk of flight. S.S., supra, 229
N.J. at 380.
Further, we reject the State's argument that the evidence
should be viewed in the light most favorable to it. Detaining a
defendant pretrial is fundamentally different than returning an
indictment, as the detention directly and immediately impacts the
defendant's liberty interests. United States v. Salerno, 481 U.S.
739, 746-50, 107 S. Ct. 2095, 2101-03, 95 L. Ed. 2d 697, 708-11
(1987); Robinson, supra, 229 N.J. at 68. As our Supreme Court
noted, the CJRA is to be "'liberally construed' to effect its
purpose [of] rely[ing] primarily on 'pretrial release by non-
monetary means to reasonably assure'" that the three goals of the
CJRA are achieved. Robinson, supra, 229 N.J. at 55 (quoting
N.J.S.A. 2A:162-15). Moreover, "[i]n our society liberty is the
norm, and detention prior to trial or without trial is the
carefully limited exception." Salerno, supra, 481 U.S. at 755,
107 S. Ct. at 2105, 95 L. Ed. 2d at 714. Thus, even where there
is a presumption of detention, it would seem incompatible with the
liberal construction of the CJRA and a defendant's fundamental
interest in liberty to view evidence at a pretrial detention
hearing in the light most favorable to the State.
13 A-4350-16T6 The State contends that Pretrial Services' no release
recommendation combined with the statutory presumption strongly
weighs in favor of detention. However, during oral argument before
the Court in State v. S.N., No. A-079320, amicus American Civil
Liberties Union of New Jersey (ACLU) argued that under the
Judiciary's approved Decision Making Framework (DMF), when a
defendant is charged with certain crimes, the Pretrial Services
recommendation is always no release irrespective of the ratings
on the PSA.1 See C.W., supra, 449 N.J. Super. at 241 n.11 (noting
the defendant and ACLU argued that the DMF automatically produced
a no release recommendation for certain offenses, including
murder). Thus, the presumption and the recommendation are
apparently based solely on the offense charged and one should,
therefore, not enhance the weight of the other.
In arguing that Pretrial Services' recommendation should make
the presumption of detention even more difficult to overcome, the
State relies on the provision in Rule 3:4A(b)(5) stating that
Pretrial Services' no release recommendation is "prima facie
evidence sufficient to overcome the presumption of release[.]"
Rule 3:4A(b)(5) was the focus of much discussion during oral
argument in S.N. The justices questioned how a recommendation
1 S.N. was argued before the Court on September 11, 2017. An opinion is pending.
14 A-4350-16T6 could constitute evidence of flight risk or danger to the
community, particularly where it was based only on the crime
charged. The justices entertained suggestions from the parties
as to whether and how the rule should be revised.
In light of the concerns the justices raised about the weight
afforded to a no release recommendation and the fact that the
recommendation, like the presumption of detention, is apparently
based only on the offense charged, we conclude the recommendation
cannot increase the burden on a defendant to overcome the
presumption of detention. When the Legislature established the
burden of proof to overcome a presumption as a preponderance of
the evidence, it presumably understood that the recommendation
from Pretrial Services for all defendants charged with murder
would be no release.
The State's reliance on C.W. for its contention that where
the presumption of detention is triggered, release should be the
"uncommon exception," is also misplaced. In C.W., supra, 449 N.J.
Super. at 257, while discussing the clear and convincing burden
of proof to overcome the presumption of release, we commented the
drafters of the CJRA "presumably chose that high bar to make
detention the appropriate result for only a limited group of the
most serious cases[.]" However, it does not necessarily follow
15 A-4350-16T6 that where the presumption of detention is triggered, release
should be an uncommon exception.
Defendants can rebut the presumption of detention by a
preponderance of the evidence, which does not pose the same high
bar as a clear and convincing standard. Further, nothing in the
CJRA suggests any intent to limit a defendant's ability to rebut
the presumption beyond his or her ability to convince a court by
a preponderance of the evidence that he or she will not flee,
obstruct justice, or pose a danger to the community. Once the
presumption of detention is rebutted, the same high bar of clear
and convincing evidence applies as when there is a presumption of
release. Thus, rather than supporting an argument for more
expansive detention, our observations in C.W. that the intent of
the CJRA is to limit detention to the most serious cases applies
equally where there is a presumption of detention.
The remaining question is whether the court abused its
discretion in finding defendant rebutted the presumption of
detention and that there were conditions of release that would
reasonably assure his appearance in court when required and the
safety of any other person or the community.
As to risk of flight, defendant proffered evidence that he
was a long-time resident of Irvington, had strong family ties in
the area, and was currently on disability after working for a
16 A-4350-16T6 maintenance company. Further, defendant's criminal history showed
only one failure to appear in 1998.
The State provided no evidence, let alone clear and convincing
evidence, that defendant was a flight risk. The State cannot rely
on the likelihood that defendant may be facing a lengthy sentence
to establish a flight risk; otherwise, no defendant could ever
overcome a presumption of detention.
As to the risk of danger to any other person and the
community, the court found defendant was not the aggressor
throughout the incident and it appeared on the video he was acting
in self-defense. The court gave significant weight to these
findings, which go to the nature and circumstances of the offense
and the weight of the evidence, two factors the court properly
considered under N.J.S.A. 2A:162-20. While the State faults the
court for relying on its "own verdict of self-defense," we find
it was appropriate for the court to assess the risk defendant
posed to the community based on his behavior captured in the video.
The court's observation that it appeared defendant was acting
in self-defense was relevant to assessing his risk of danger to
the community, regardless of whether defendant could ultimately
prove the elements of self-defense. The purpose of the pretrial
detention hearing is not to decide whether or not defendant acted
in self-defense. The only relevance of defendant's behavior is
17 A-4350-16T6 whether it tends to show that no conditions of release would
reasonably assure the safety of any other person or the community.
Under the abuse of discretion standard, defendant's behavior on
the video does not establish there were no conditions of release
that could reasonably assure the safety of any person and the
community.
Defendant's criminal history was the only other evidence the
State relied on that was relevant to this issue. While the court
mentioned defendant's criminal history, it made no findings as to
whether it weighed in favor or against detention. The court noted
that sixteen convictions were for disorderly persons offenses, but
defendant also had a few convictions for indictable offenses, such
as drug possession and hindering arrest. However, none of
defendant's past offenses were for violent crimes.
We conclude the court did not abuse its discretion in finding
defendant rebutted the presumption of pretrial detention and that
home detention with electronic monitoring would reasonably assure
defendant's appearance in court when required and the safety of
any other person or the community. The court considered all
relevant factors and its decision did not reflect an abuse of
discretion.
Affirmed.
18 A-4350-16T6